Space and Defense 4 1 PDF

Space and Defense
Scholarly Journal of the United States Air Force Academy

Eisenhower Center for Space and Defense Studies
Editor-in-Chief
Ambassador Roger Harrison, Roger.Harrison@usafa.edu
Director, Eisenhower Center for Space and Defense Studies
Academic Editor
Dr. Eligar Sadeh, esadeh@gmail.com
Principal Scientist, Eisenhower Center for Space and Defense Studies
Associate Academic Editors

Dr. Damon Coletta
U.S. Air Force Academy, USA
Dr. Michael Gleason
Dr. Peter Hays
National Security Space Office, USA
Major Deron Jackson
Colonel Michael Smith
U.S. Air Force, USA
Reviewers
Andrew Aldrin John Logsdon
United Launch Alliance, USA George Washington University, USA
James Armor Agnieszka Lukaszczyk
ATK, USA Space Generation Advisory Council, Austria
William Barry Molly Macauley
NASA, France Resources for the Future, USA
Frans von der Dunk Scott Pace
University of Nebraska, USA George Washington University, USA
Paul Eckart Xavier Pasco
Boeing, USA Foundation for Strategic Research, France
Andrew Erickson Wolfgang Rathbeger
Naval War College, USA European Space Policy Institute, Austria
Joanne Gabrynowicz Scott Trimboli
University of Mississippi, USA University of Colorado, Colorado Springs, USA
Dana Johnson James Vedda
Northrop Grumman, USA Aerospace Corporation, USA
Theresa Hitchens Rick Walker
United Nations, Switzerland Digital Consulting Services, USA
Wade Huntley Annalisa Weigel
Independent Researcher, USA Massachusetts Institute of Technology, USA
Jonty Kasku-Jackson David Whalen
National Security Space Institute, USA University of North Dakota, USA
Ram Jakhu George Whitesides
McGill University, Canada NASA Headquarters, USA
Roger Launius Ray Williamson
National Air and Space Museum, USA Secure Word Foundation, USA
Space and Defense
Scholarly Journal of the United States Air Force Academy
Eisenhower Center for Space and Defense Studies
Volume Four ▪ Number One ▪ Winter 2010
Articles
Lawful Response to Attacks on Space Systems 3

James D. Rendleman
The New Space Order: Why Space Power Matters for Europe 53
Nicolas Peter
Europe and Security Issues in Space: The Institutional Setting 71

Frans von der Dunk
Chinese Intentions in Space: A Historical Perspective for Future Cooperation 101

Gregory Kulacki
Eisenhower Center Program Summaries
Space Situational Awareness Workshop 117

Summer Space Seminar 117
Asia, Space, and Strategy Workshop 118
National Space Forum 118
Transatlantic Space Cooperation Workshop 119
Lawful Response to Attacks on Space Systems
James D. Rendleman
Colonel, USAF (Ret.), Colorado Springs, Colorado
What means may a nation lawfully employ to and battlespace characterization, missile
respond to and to defeat threats and attacks on warning and defense, weather,
its space systems? Treaties and customary law communications, intelligence, surveillance,
provide a strong incentive to limit space and reconnaissance – enable the U.S. and its
activities to non-aggressive “peaceful allies to reach out, shape, support, and control
purposes.” They do not, however, proscribe events in any part of the globe.
space warfare or preparation for such conflict.
Space system components are thus at risk, and Taking down space capabilities offers a means
can be attacked, degraded, or destroyed, by which adversaries can degrade the
simultaneously or each in detail. The use of significant asymmetric advantages offered.
force is allowed only in self-defense against Consequently, the recent 11 January 2007 test
an “armed attack” or in accord with of a Chinese ground-based, direct-ascent anti-
authorization of the United Nations (UN). satellite (ASAT) interceptor against one of
Kinetic, electromagnetic, or information their own defunct Feng Yun-1C weather
operation attacks against space systems are satellites generated considerable concern
each an “armed attack” to which the use of across the U.S. and international space and
force is permitted. The right of self-defense is related defense communities.
subject to the Law of Armed Conflict (LOAC)
and other treaties and agreements. Even if How should capabilities presented by space
lawful means and methods are employed and systems be protected? The U.S. approach to
targets engaged, physical, technical, securing and protecting the space domain has
environmental, political realities, and their been and will continue to be rooted in rational
risks and benefits limit options to defend and policy making and municipal (i.e., domestic,
fight space systems. Decades of senior policy- national) and international law. Long-standing
makers have recognized the importance of the treaties and policy support the peaceful uses of
space domain, assessed the risks in their space for civil, commercial, and military
context, and provided measured and calm purposes. Yet, these may fail in times of
global leadership to preserve access to it. conflict. Accordingly, the U.S. cannot wholly
depend on passive defensive capabilities, or
The United States (U.S.) utilizes space more diplomatic engagement and awareness, to
than any other nation, not only for national secure itself.
security, but in the private sector as well. The
complete mix of civil, military, national, and Recognizing the importance of protecting
multinational commercial space capabilities satellites as strategic assets, the U.S. has
are important enablers for successful 21st employed a comprehensive strategy to
Century militaries, economies, information accomplish this objective since the inception
transfer, diplomatic communications, and of the Space Age. During the Cold War,
collaboration. Space-based capabilities – hardening military satellites against potential
precision-navigation-timing (PNT), battlefield destruction was commonplace, though
4 James D. Rendleman/Lawful Response to Attacks on Space Systems
“development of specific weapons to target enables a spacefaring nation with the abilities
hostile satellites or threats to U.S. satellites to present agile responses to changes and
was politically eschewed. The U.S. desire to threats in the space environment to assure
protect its satellites was overridden by viability of systems. Deterrence strategies and
wanting to avoid what were considered approaches are important and inhibit potential
potentially destabilizing efforts, and what attacks by adversaries; however, they do not
seemed as an inevitable arms race in space.” 1 fully assure access to space. A variety of
Contemporary and emerging capabilities defenses can complement deterrence by giving
posed by hostile states and non-state actors tools needed to respond to human-made and
now serve as a catalyst for a reappraisal of environmental threats. In sum, employing
tools one might employ to achieve deterrence these four pillars have in the past and will in
and even defeat such threats. the future enable U.S. and friendly space
systems to continue to perform their missions
Considering the complexities of the threat for the short and long terms.
environment, the strategy to assure the U.S.
and its allies have access to space capabilities With the possibility of space conflict and
depends on four mutually supportive elements combat, policy-makers and commanders must
or pillars: 2 balance the benefits with the risks. Decisions
to employ this conflict/combat aspect of the
• Global Engagement. fourth pillar of space assurance, deterrence
• Space Situational Awareness (SSA). and defense, must not be taken lightly. Given
• Responsive Infrastructure. their diversity, deterring, defeating, or
• Deterrence and Defense. eliminating human-made threats will be
difficult to achieve. This is the case even
Global engagement leverages long-standing though a myriad of combat tactics can be
approaches to securing and protecting the employed against those who attempt to deny
space domain through recognized access to space capabilities.
international law, policy, and diplomacy. SSA
enables the monitoring of environmental When planning to employ space defense
factors and prediction of threats essential to strategies and respond to attacks on space
decision-making to assure mission success. systems, decision-makers must consider a
This allows a policy-maker or commander to particularly important factor – the law. Some
differentiate between purposeful attacks and rail against any use of force to protect access
natural environmental hazards; to anticipate to space, unmindful of the risk, suggesting
space events and clarify intentions; this, in such actions could somehow constitute
turn, reduces the potential for misperception violations of treaty, custom, domestic law,
or miscalculation. SSA also enhances policy, or LOAC. Granted, those who argue
opportunities to avoid disruptive or destructive against “any use of force” are in a minority,
events. A robust and responsive infrastructure but many do make earnest arguments for
significant limitations to space warfare. In
1
Joan Johnson-Freese, “The Viability of U.S. Anti-Satellite
contrast, in the military space field only a
(ASAT) Policy: Moving Toward Space Control, INSS decade or so ago people talked about Space
Occasional Paper 30, U.S. Air Force Institute for National Control. In fact, Space Control is still one of
Security Studies (INSS), January 2000, p. 1.
2 the four space mission areas discussed in Joint
The four pillars of space assurance are more fully discussed
in James Rendleman, “Space Assurance for the 21st Century,” Publication 3-14, Space Operations (6 January
High Frontier 5: 2 (February 2009): 46-53. 2009), and Counterspace Operations, Air
Space and Defense, Winter 2010 5
Force Doctrine Document 2-2 (2 August Space Capabilities and Threats

2004). Proponents have been arguing that the
U.S. should prepare for winning in a contested Because the complexities of space combat
space domain, a concept described as “space pose significant legal issues, the technical,
dominance;” this objective has been historical, and policy taxonomies of potential
broadened by advocates to “full spectrum threats and attacks on space systems that could
dominance.” 3 The current 2006 U.S. National initiate such conflict must be fully understood.
Space Policy precepts and space control A satellite system consists not only of
doctrine suggest the U.S. should proactively spacecraft, but supporting infrastructure,
control the environment – to assure access by including ground stations, tracking and control
U.S. and allied systems, defeat threats, and links – commonly referred to as the tracking,
deny adversaries access to their own space telemetry, and control (TT&C) – and data
capabilities if required. 4 There must be a links; launch facilities, supporting
proper balance of all these divergent interests. infrastructures and the industrial base are also
vital. These components are all at risk to
Assuming the U.S. or any other nation threats of physical and cyber attack and
believes it is compelled to use force to sabotage, and can be attacked, disrupted,
respond to threats or attacks on its space degraded, or destroyed, simultaneously or
systems and/or those of its allies, the each in detail.
proposition to be surveyed and examined in
this paper is: what means may a nation Space-based threats to satellites are
lawfully employ to respond to and defeat proliferating as a result of the ever-growing
threats to and attacks on its space systems? global availability of space technology; states
can reach out to space and “touch” satellite
This paper will examine how relevant treaties, payloads and their supporting buses through a
customary law, LOAC, and other legal variety of kinetic and non-kinetic means; even
principles substantially restrict space warfare non-state actors could potentially access some
options, but also reduce the potential for of these technologies and space systems and
conflict among law-abiding spacefaring cause problems. It takes little imagination to
nations. We will identify legal principles envision multiple means by which a satellite
supporting the right to defend a national or payload and/or its bus can be disrupted,
allied space system. Following this, we will degraded, destroyed, or otherwise disabled. 5
apply these principles with a dose of Spacecraft are vulnerable to direct ascent
engineering and policy concerns to discuss weapons as demonstrated by the Chinese
lawful and unlawful means and methods to ASAT test and also to a variety of other
prosecute the right of self-defense and to ground-based, airborne, and space-based
defeat threats to space systems. ASAT systems. These require sophisticated
boosters, launch facilities, and high-tech
terminal guidance capabilities; this is not an
easy system to generate and field without state
sponsorship. Direct-ascent launched or orbit-
3 5
Dwayne Day, “Space Policy 101,” The Space Review 15 Every satellite has a “payload” and a “bus.” The payload
June 2009, http://www.thespacereview.com/article/1397/1 contains all the equipment a satellite needs to perform its
(accessed January 2010). mission functions. The bus supports the payload and provides
4
Fact Sheet on U.S. National Space Policy, National Security electrical power, computers, and propulsion for the entire
Presidential Directive 49, 31 August 2006. spacecraft.
based nuclear devices can be detonated, satellites inoperable or unavailable. A variety

generating energetic electrons and other of jammers emit signals that mask or prevent
particles, radiation belts, and other effects that reception of desired signals; these methods
can fry unshielded satellite circuitry over a can disrupt unprotected uplinks, downlinks,
wide lethal range. Space mines can be and even cross-links. Electromagnetic
deployed in close proximity to satellites or be deception and spoofing techniques can be
employed to generate debris clouds that employed to confuse unprepared and
destructively engage whole classes of low unprotected systems; this could include
Earth orbit (LEO) satellites in the same orbital sending false, but deceptively plausible,
plane or in crossing orbits, or to create commands that cause spacecraft to perform
problems among satellites in geosynchronous damaging or wasteful maneuvers, modify
orbits (GEO). Ground, space-based, or databases or configuration changes, or
airborne lasers could wreak havoc upon otherwise destroy it. Similarly, supporting
satellite components. Blinding operations terrestrial ground stations, computer networks,
could be employed and achieve a variety of and links are vulnerable to information
effects from a temporary “dazzling” with a operation attacks. This could involve
laser to permanent burnout of optical or other executing denial of service tasks, injection of
sensors with an otherwise intense energy fake commands, malicious software and
burst. viruses, unauthorized monitoring and
disclosure of sensitive information (data
Vital command and control and interception), and unauthorized modification
communications stations, and their links to or deliberate corruption of network
satellites and each other are also at risk. 6 At a information, services, and databases.
fundamental level, they are vulnerable to
classically accepted terrestrial land, sea, or air While achieving success would be difficult to
kinetic attacks, including sabotage. 7 Some achieve and is unlikely, offensive information
unprotected stations, links, and user segments operations can be undertaken against on-orbit
are susceptible to electronic attack that can satellites seeking to effect shutdown
degrade, neutralize, or destroy their operations, where an adversary gains access to
capabilities. These threats and attacks a satellite’s control program and directs it to
encompass jamming and electromagnetic cease functioning for some length of time.
deception techniques. Jammers disable the This could be orchestrated to coincide during
means of command and control and data the initial critical moments of a simultaneous
communications, and in this manner render and parallel terrestrial attack, or involve a
permanent command to never resume
6
Control stations track and control satellites to ensure they operations. While not physically damaging the
remain in proper orbits and properly perform their missions. satellite, the result would be the same. It
Communications ground stations process satellite mission
data and link that data to ground-based networks and users.
would deprive the owner/operator of its use
TT&C links exchange commands and status information precisely when the system is most needed.
between control ground stations and satellites. Data links Directing a permanent shutdown could cause
exchange mission data between communications ground
stations and satellites. These links may pass through ground
total loss of for any owner not able to reaccess
stations or satellites and relayed as appropriate. the platform and override the command.
7
Ground stations are often located in remote and hard to get to Similarly, an attitude movement could be
places. Orchestrating an attack on them is feasible, though directed by accessing the satellite’s control
perhaps impractical. Most sites are well protected and the
logistics needed to achieve a successful attack could be program, ordering the satellite platform to
difficult to assemble. rotate on its axis, or pointing the mission
sensor, communications antennae, receiver, among various parts of the Chinese

solar cells, or any other directionally- government, with the People’s
Liberation Army (PLA) carrying out
dependant system in the wrong direction. Such the test without the knowledge of the
an attack would be effective against a satellite Chinese Foreign Ministry or other
whose effectiveness depends on payload and parts of the governmnt. “Put bluntly,
commucication systems pointing at precise Beijing’s right hand may not have
transponder and receiver targets, or sensors known what its left hand was doing,”
writes Bates Gill and Martin
aimed at a particular area of interest. Kleiber… “This may be a more
troubling prospect than anything the
A translation movement attack involves test might have revealed about
directing the activation of a satellite’s China’s military ambitions or arms
thrusters and sending the platform into a new control objectives.” 9
orbit. This could also cause loss of the satellite
or require the system to expend vital on-orbit Moreover, Chinese military strategist, Wang
resources to correct its position; the Fa’an, has proposed the PLA set up its own
expenditure of resources to correct the space forces in the future to protect China’s
satellite’s orbit or orientation could growing space assets. 10 However, Chinese
significantly limit the system’s life. The capabilities do not pose the only concerns.
destruction of the satellite could be There have been attacks on space systems by
accomplished by issuing damaging commands other actors and the U.S. and the global space
to its control program, e.g., to mismanage community have had good reason to take
propellant temperature controls to the point of notice. Given the proliferation and diversity of
tank or propellant line rupture. other global threats, China’s ASAT test only
served to provide an important exclamation
Lastly, an appropriation or impressment attack point on the specter of space conflict. As
involves transfer of control of the satellite observed by retired Congressman Terry
system to an adversary. The satellite’s control Everett in his Fall 2007 article written for
program is accessed and altered, denying the Strategic Studies Quarterly:
launching state use of its own platform. Worse
…In the past few years, we have seen
than mere destruction, the satellite’s a handful of global positioning
capabilities are then placed at the disposal of system (GPS) and increasing numbers
an attacking state. 8 of satellite communications
(SATCOM) jamming incidents. In
Given these threats, the 2007 Chinese ASAT the early stages of Operation Iraqi
Freedom, U.S. forces encountered a
test stoked the fires of a long-running debate GPS jamming situation. In this case,
over whether and how the U.S. and its allies precision munitions were used to hit
should prepare for space conflict. More these jamming sources, which
terrifying: allowed our forces to quickly resume
operations. We have seen several
Some have argued that the test is SATCOM jamming incidents,
evidence of a lack of communication including Iranian jamming of a U.S.
8 9
For a worthwhile overview of potential attacks on space Jeff Foust, “The Chinese ASAT enigma, The Space Review 7
systems, see Thomas C. Wingfield, Legal Aspects of Offensive May 2007, http://www.thespacereview.com/article/864/1
Information Operations in Space, 23 March 2000, pp. 3-4 (accessed June 2009).
10
[unpublished manuscript], http://www.au.af.mil/au/awc/ Peng Kuang and Cui Xiaohuo, “PLA Should Play Role in
awcgate/dod-io-legal/wingfield.doc (accessed January 2010). Space: Strategist,” China Daily, 16 June 2009.
satellite from Cuba in July 2003; In sum, the contemporary, emerging threats to
ongoing jamming by Iran against space systems posed by hostile states and non-
PanAmSat Corporation, Asia Satellite
Telecommunications Co. Ltd., Arab
state actors are fundamentally different from
Satellite Communications that experienced during the Cold War.
Organization, and Eutelsat S.A. from Vulnerabilities span the whole of the space
June 1997 to July 2005; and Libyan community, and these weaknesses have been
jamming of two international studied by adversaries to the U.S. and its
SATCOM systems in December
2005. Last fall it was reported that a
allies. These adversaries are now much more
Chinese ground-based laser diverse, sophisticated, and technologically
illuminated a National competent; they are equipped and able to
Reconnaissance Office intelligence- disrupt space activities. Defending space
gathering satellite. What is most assets demands new tools as deterring or
troubling is that these attacks are
coming during a period of widespread
eliminating evolving threats will be difficult.
use of GPS, satellite communications,
and space-based imagery.
…There is a spectrum of Securing the High Frontier of Space
potential threat capabilities looming
on the horizon to include electronic
jamming, low-power laser blinding,
U.S. law and policy place great emphasis on
high-energy lasers, microsatellites, diplomacy and international engagement; it is
direct-ascent ASATs, cyber attacks, a centuries-old practice that has secured
physical attacks to ground stations, borders, enhanced commerce, and brokered
and possibly even a nuclear and resolved disputes. Assuming adversaries,
explosion. These threats can target
satellites in orbit; their
and friends, pay heed to customary and treaty-
communications links to and from the based provisions of international law, the
ground; and their ground-based global engagement pillar of space assurance
command, control, and receive affords the space community a respectable
stations. All produce the same general measure of confidence they can all have
result – they render our space
capabilities temporarily or
assured access to space. Even so, given the
permanently useless. Many of these present minimal international law restrictions
anti-satellite technologies exist today, on space activities, smart decision-making is
and many are dual-use in nature, also vital to operate safely and securely. The
including a microsatellite that could complete span of international legal, policy,
be used as an experimental spacecraft
or, with a simple command, could
diplomacy, and engagement implications
shadow or collide with another should therefore be fully considered when
satellite. planning for and executing space assurance
Space is no longer a sanctuary. activities. The U.S. has done this for decades;
Those who wish to challenge it has applied significant experience and
America’s role in the world
increasingly recognized the strategic
importance of space and are more
willing to deny us freedom of action March 2003; Major General William L. Shelton, commander,
in space by employing a wide range 14th Air Force, “Update on Space Operations,” Air Force
of methods. 11 Association National Symposium on Space, Beverly Hills,
California, 17 November 2006; Warren Ferster and Colin
Clark, “NRO Confirms Chinese Laser Test Illuminated U.S.
11
Terry Everett, “Arguing for a Comprehensive Space Spacecraft,” Space News 2 October 2006; and Office of the
Protection Strategy,” Strategic Studies Quarterly (Fall 2007): Secretary of Defense, Military Power of the People’s
23-24, citing Jim Garamone, “CENTCOM Charts Operation Republic of China 2007, Annual Report to Congress
Iraqi Freedom Progress,” American Forces Press Service, 25 (Washington, DC: Department of Defense, 2007).
wisdom to prepare for and take care of threats importance, and the document reflects this.
posed by ASAT and other systems for the The Constitution, Article I § 8, Clause 10 sets
entirety of the Space Age. out in pertinent part: Congress has the power
“to define and punish offenses… against the
What are the applicable foundations of Law of Nations.” Treaties are concluded under
international law? First, treaties and other the authority of the Constitution, Article II §
bilateral agreements to which sovereign states 2, Clause 2 , which declares the President
are signatories, and which govern issues of “shall have Power, by and with the Advice
interest; and second, multinational agreements and Consent of the Senate, to make treaties,
among sovereigns. International agreements provided that two-thirds of the Senators
are governed, not by contract law, but by the present concur.” 14 Article VI, Clause 2
Vienna Convention on the Law of Treaties. 12 provides: “…all Treaties made, or which shall
Under the Vienna Convention, states can do be made, under the Authority of the U.S. the
anything they want and agree to, unless what name of the U.S., shall be the supreme Law of
is contemplated violates a peremptory norm the Land.” 15 Generally, treaty terms take
(i.e., a fundamental principle of international precedence over conflicting U.S. statute
law that is accepted by the international terms. 16
community of states as a norm from which no
derogation is permitted). While the U.S. has With relatively few treaty restrictions
not ratified the Vienna Convention, it treats governing activities in space for military or
the bulk of its rules as compelling under other purposes, some might think the U.S. is
customary international law, which is a third faced with a dilemma – should it only abide
foundation of international law. The fourth by a permissive “letter of the law” standard or
foundation deals with general principles the “spirit of the law”? If only the letter of the
common to mature legal systems. And the law, what approach should it want to see
fifth, deals with the subsidiary “municipal” adopted by current or fledging space nations?
determinations of law (e.g., national decisions, Actually, the choice is not between the letter
such as those rendered by the U.S. Supreme and spirit of the law; on the whole, the U.S.
Court). 13 abides by both standards. Decades of senior
policy-makers within the Executive and
International law is an integral part of the U.S. Congressional branches of the U.S.
legal system. Its founding fathers convened at Government have recognized the importance
the 1787 Philadelphia Constitutional
Convention to revise the unwieldy and 14
Under international law, the terms “treaty” and
moribund Articles of Confederation; the “international agreement” are synonymous, although the
impetuses for their meeting were intractable terms do have different meanings within the U.S. Department
commercial, trade and defense issues, also of Defense (DOD). DOD Document 5530.3, International
Agreements, 11 June 1987, Enclosure 2, defines “international
important in the international arena. The agreement” more broadly, to include agreements between
framers knew international law existed, its lower levels of nations’ governments (e.g., the U.S.
Departments of Defense) that are under the umbrella of a
treaty, but have not themselves been ratified (“advice and
12
See Vienna Convention on the Law of Treaties, 23 May consent”) by the U.S. Senate.
15
1969. Customary law is not part of the “supreme Law of the
13
Article 38 of the Statute of the International Court of Justice Land” though some U.S. Supreme Court Justices are now
defines its sources. See Nathaniel Burney, “International Law: making some rather disconcerting noises about incorporating
A brief primer for information purposes only,” portions of such law into the U.S. constitutional system.
16
http://www.burneylawfirm.com/international_law_primer.htm The major exception to this is when Congress intends for a
(accessed January 2010). later statute to override the conflicting treaty provision.
of the domain; assessed risks associated with have been agreed to and these have improved
not providing measured and calm global opportunities for transparency between
leadership to preserve access to it; and made potential adversaries, perhaps improving
decisions in accord with those assessments. 17 dialogue to prevent any dispute from
In turn, the U.S. encourages comparable devolving or escalating into armed conflict or
policy-making by other states of the global to a nuclear catastrophe. Other treaties and
community. conventions, such as those involving the
International Telecommunications Union
As it executes global engagement activities, (ITU) address vexing spectrum management
the U.S. has been and will be on the receiving issues, which have profound impacts on
end of criticisms and exhortations that it does military, civil, and commercial space systems.
not follow the spirit of the law when refusing The ITU presently attempts to equitably
to accede to new agreements, standards, rules, reconcile the explosion of information
and practices affecting space activities. But technologies, exponential user growth and
this refusal involves instruments whose terms needs, all within nature’s limited useable
lack precision, are unverifiable, fail to bandwidth in the electromagnetic spectrum.
comprehensively address issues, or place the
U.S. and its allies’ defense and economic The Treaty on Principles Governing the
security interests at risk. These critiques must Activities of States in the Exploration and Use
be expected in the rough and tumble of the of Outer Space, Including the Moon and Other
global stage, where each state jockeys for its Celestial Bodies of 1967, or the Outer Space
own national or regional advantage. Treaty (OST) as the treaty is informally
known, forms the basis for much of
Treaties, conventions, and agreements already international space law, including its
in force regularize space activities despite important legal principles and prohibitions.
their minimalist nature. As such, they help Under the treaty, all nations share the global
protect capabilities of systems that have been space commons; notably, it is also an
or are about to be placed on orbit. Bilateral important foundation of the entire U.S.
and multilateral arms control treaties also military, civil, and commercial space
preserve some of the sanctuary aspects of programs. The treaty was consummated at a
space by prohibiting “interference” with time when U.S. policy-makers concluded
“national technical means” (NTMs), which space offered unique benefits for the military
can include missile warning and and political dimensions of the Cold War
reconnaissance satellites used to verify treaty national security strategy. They hoped to
compliance. Confidence-building procedures fashion an agreement to preserve access to the
domain, and these motivations and the
17
document have endured and continue to serve
While diplomatic engagement has been helpful, there is an the U.S. and its allies’ national interests.
element of risk in relying solely on it to assure access to space
capabilities. Enforcement mechanisms for violating treaties Assuming the mantel of the world’s leading
and agreements relating to space are rather limited. There are spacefaring nation, the U.S. helped lead the
no specific enforcement mechanisms in place to address way on discussions relating to the treaty’s
violations of space related treaties, and this increases the risk
of depending on such documents and handshakes to protect or formation, crafting the treaty instruments, and
assure access to space. Violations of treaties and other forging a global consensus to set a tone and
agreements should nominally be responded to through worldview that space activities should be
economic means and diplomatic consultation, and if
necessary, other sanctions, assuming a nation or some part of prosecuted for peace and the benefit of
the global community agree to them. mankind.
As a signatory to the OST, the U.S. supports signatories can be found in international
freedom of access to space by all spacefaring customary law. Customary international law
powers, agreeing to treaty language that “...consists of rules of law derived from the
provides: “Outer space …shall be free for consistent conduct of States acting out of the
exploration and use by all States without belief that the law required them to act that
discrimination of any kind…” 18 The treaty way.” 20 OST signatories
also declares nations should have “freedom of …the U.S. can look to both treaty
scientific investigation in outer space.”
supports and customary law
Addressing topics that affect the potential for sources, as customary
space conflict, the OST provides that freedom of law may be applied
international law applies. “…Article III [of the access to whether or not a state is
OST] incorporates the application of space by all a treaty party. The vast
international law, and specifically the Charter spacefaring majority of the world,
of the UN, in outer space, making it a vital powers… including the U.S.,
part of the corpus juris spatialis.” 19 This accepts in principle the
incorporation of international law, not just the existence of customary
UN Charter, is important and guiding. international law even though there are often
differing opinions as to what rules are
Every major spacefaring nation is a signatory contained in it. Article 38(1)(b) of the Statute
to the OST. Rights and obligations of non- of the International Court of Justice (ICJ)
acknowledges the existence of customary
18
international law, and the ICJ rules are
See Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the
incorporated into the UN Charter by Article
Moon and Other Celestial Bodies (Outer Space Treaty). 92, which sets out in pertinent part: “The
Article I – “The exploration and use of outer space, Court, whose function is to decide in
including the moon and other celestial bodies, shall be carried
out for the benefit and in the interests of all countries,
accordance with international law such
irrespective of their degree of economic or scientific disputes as are submitted to it, shall
development, and shall be the province of all mankind. Outer apply...international custom, as evidence of a
space, including the moon and other celestial bodies, shall be
free for exploration and use by all States without
general practice accepted as law.” 21
discrimination of any kind, on a basis of equality and in
accordance with international law, and there shall be free Customary international law is something
access to all areas of celestial bodies. There shall be freedom
of scientific investigation in outer space, including the moon
done as a general practice – not because it is
and other celestial bodies, and States shall facilitate and expedient or convenient, but because it is
encourage international co-operation in such investigation.” considered law, arising out of a sense of legal
Article III – “States Parties to the Treaty shall carry on
activities in the exploration and use of outer space, including
requirement. According to Shabtai Rosenne,
the moon and other celestial bodies, in accordance with there are three elements that must be satisfied
international law, including the Charter of the UN, in the before one can conclude a rule is part of
interest of maintaining international peace and security and
promoting international co-operation and understanding.”
customary international law. First, a rule can
Article IV – “States Parties to the Treaty undertake not to be discerned by a widespread repetition by
place in orbit around the earth any objects carrying nuclear states of similar international acts over time
weapons or any other kinds of weapons of mass destruction,
install such weapons on celestial bodies, or station such
(state practice); second, the acts by states
weapons in outer space in any other manner…” related to the rule must occur out of a sense of
19
P.J. Blount, “Limits on Space Weapons: Incorporating the
Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5,
20
Presented to the International Institute of Space Law Shabtai Rosenne, Practice and Methods of International
Colloquium, International Astronautics Congress, Glasgow, Law (Oceana Publications, July 1984), p. 55.
21
UK, October 2008. UN Charter, Article 92.
legal obligation; and third, these acts must be Three concepts apply to the formulation of
taken by a significant number of states and not customary law – recognition, acquiescence,
be rejected by a significant number of states. and estoppel. According to Malcolm Shaw:
A marker of customary international law is
consensus among states exhibited by Recognition is a positive act by a
widespread conduct together with a state accepting a particular situation,
and even though it may be implied
discernible sense of obligation. 22 from all the relevant circumstances, it
is nevertheless an affirmation of the
Under customary international law, what is existence of a specific factual state of
done, written, or said can establish legal affairs even if that accepted situation
precedent. But not always as such matters do is inconsistent with the term in a
treaty. Acquiescence, on the other
not usually undergo examination in a hand, occurs in circumstances where
courtroom setting. This a protest is called for and does not
presents an opportunity Under happen, or does not happen in time in
for mischief, even if customary the circumstances. In other words, a
only in a diplomatic international situation arises, which would seem to
require a response denoting
drama. This explains law, what is disagreement, and since this does not
why U.S. policy-makers
done, written, transpire, the state making no
feel compelled from objection is understood to have
time-to-time to rein-in or said can accepted the new situation. The idea
senior officers and establish of estoppel in general is that a party,
which has made or consented to a
officials who speak out legal particular statement upon which
on topics or matters precedent. another relies in subsequent activity
related to space to its detriment or the other’s benefit,
security, space conflict, or other important cannot thereupon change its
issues before a decision has been made by the position. 23
entire U.S. national security policy
community. Uncoordinated speeches, Provocative or unintentional jamming or
doctrine, concepts of operations, and other dazzling incidents involving space systems
instruments can have a corrosive effect on the may require immediate response and even
formation of space policy. They can, protest, or a state may risk a determination in
unwittingly, establish policy and potentially customary law that it has acquiesced to the
legal precedent in advance of a comprehensive events.
interagency consensus. While fundamental
principles of good faith and equity apply in Estoppel involves a legal concept “whereby
international law, no seemingly innocuous states deemed to have consented to a state of
comment goes unpunished. Actions and words affairs cannot afterwards alter their
can have a legal, policy, and diplomatic effect position.” 24 As an example, State Party A
– even where no specific legal document or states something to induce an expectation,
other agreement memorializes them. stating: “Party A will monitor the space
environment and warn all spacefaring nations
of potential space collision threats.” Though
23
Malcolm Nathan Shaw, International Law (Cambridge
22
Shabtai Rosenne, Practice and Methods of International University Press, 5th Edition, 2003), p. 437.
24
Law (Oceana Publications, July 1984). Ibid., p. 439.
no specific agreement is made with Party A Soviet response options would be

for the provision of such services, State Party limited to legal and diplomatic
protests, attacks on ground stations,
B justifiably believes Party A’s statements or total war. If the U.S. paid careful
that Party A will employ its SSA capabilities attention to political and
as stated. Party B refrains from securing such psychological issues associated with
tools, and relies on Party A in operating its space technology, the RAND report
space systems. Assuming a Party B satellite is argued, it could constrain the Soviet
counter reaction, strengthen
damaged by a collision to which Party A had deterrence, reduce Politburo
the sufficient resources and specific resistance to international inspections
information to warn of the problem, then the of atomic installations, and possibly
doctrine of estoppel could offer Party B some elicit a radical reorientation of Soviet
possible legal or diplomatic recourse. behavior along more cooperative
lines.
To establish a favorable political
The classic example of actions having legal context and set a precedent that could
effect or precedent in the space context is the be used to legitimize future
launch of the Sputnik satellite system over a reconnaissance satellites, the
half-century ago. This launch established the Eisenhower administration decided to
start by launching a scientific satellite
legal precedence and customary international even though military alternatives
law for free passage of space systems and would have been ready sooner. The
over-flight rights while on-orbit. Some launch coincided with the
suggest that President Dwight Eisenhower International Geophysical Year, and
directed a slowing of pending U.S. space the satellite, launched using a
modified research rocket, was placed
launch activities so the Soviets could in an orbit that would not traverse the
successfully launch first, allowing their Soviet Union. The U.S. decision to
actions to establish customary over-flight wait until it could launch a scientific
rights. According to Nancy Gallagher and satellite allowed the USSR to create a
John D. Steinbruner: public sensation by being the first
country to launch a man-made
satellite, but one of Eisenhower’s
A 1950 RAND report that has been military advisors remarked that the
called “the birth certificate of Soviets “had done us a good turn,
American space policy” underscored unintentionally, in establishing the
the practical importance of legal concept of freedom of international
justification. The report emphasized space.” That judgment reflected an
the “vital necessity” of improved appreciation that space could not be
intelligence about the closed Soviet physically controlled by military
Union, but cautioned that because the force in the manner that territory on
existence of spy satellites could not Earth or the airspace over it is
and should not be kept secret for controlled.
long, creating a favorable context in Some accommodation in space for
which to use the new technology mutual benefit would be necessary
would be just as important as even in the context of global
developing the capability itself. The confrontation. Khrushchev appeared
authors recognized that to have recognized this logic, as well.
reconnaissance satellites would pose After the Soviets shot down an
a dilemma for Soviet leaders, who American U-2 reconnaissance plane
would see the loss of secrecy as a in May 1960, Charles de Gaulle
major violation of sovereignty and a asked about cameras in the Sputnik
quasi-permanent threat to security. orbiting over France, and Khrushchev
But U.S. satellites would be too high said that he objected to airplane
to shoot down, at least initially, so
overflights, not satellite-based development activities. It has launched long-

surveillance. 25 range ballistic missiles over the Japanese
Islands, but claims its launches are part of
The Eisenhower Administration’s objective to developing a new satellite system. The North
obtain universal acceptance of the concept of Korean April 2009 launch has contributed to
satellite free passage and overflight rights was the controversy.
more fully achieved years later when these
customary law principles were included in the North Korea claims that the mission
OST. In the meantime, statements of such was a peaceful attempt to launch a
principles were presented and discussed communications satellite into orbit,
within various global community and UN but the image suggests otherwise,
according to Geoffrey Forden, a
forums, and can be found in a number of physicist and arms-control analyst at
disparate documents including the 1958 the Massachusetts Institute of
National Aeronautics and Space Act, and UN Technology. Forden triangulated the
General Assembly resolutions. trajectory of the rocket using the
contrail in the image, the position of
the satellite taking the picture, and
Free passage and overflight rights continue to North Korea’s declared ’splashdown
be matters that warrant interest. This is an zones’ for the first and second stages.
important issue as air space is subject to Based on his analysis, the TD-2’s
sovereignty rules; in contrast, signatories to [Taepodong 2] course appears to be
the OST make no such claims on outer space. too shallow to be a space launch. To
reach orbit, Forden says, the rocket
If violated, this may justify self-defense or should have been travelling almost
reprisal responses by objecting states, vertically in an attempt to gain
especially with regard to spacecraft and altitude early on in its flight. Instead,
related equipment transiting what would it appears to be pitching horizontally,
traditionally be considered air space during sacrificing height for distance in a
trajectory that would allow it to sling
spacelift or de-orbit mission phases. Current a warhead as far as possible. Such a
international community treaty and customary trajectory could be consistent with
law treatments of free passage and overflight that of an intercontinental ballistic
rights have been pushed to the limits by the missile (ICBM). 26
rogue North Korea bogeyman. North Korea
arguably exploits the rules to facilitate and Presenting a threat to peace, the North Korean
prosecute provocative ballistic missile ballistic missile and nuclear proliferation
activities have been deemed violations of UN
25
Nancy Gallagher and John D. Steinbruner, Reconsidering Security Council Resolution 1718, which
the Rules for Space Security, American Academy of Arts and demands the country not conduct new nuclear
Sciences, Reconsidering the Rules of Space Project, tests nor launch a ballistic missile. 27
Cambridge, Massachusetts, 2008, pp. 7-8. The adviser was
Donald Quarles, Eisenhower’s assistant secretary of defense Nevertheless, North Korea, who only recently
for research and development. See A. J. Goodpaster, acceded to the OST on 3 May 2009, insists its
“Memorandum of Conference with the President,” 8 October April 2009 rocket launch is part of an effort to
1957, Dwight D. Eisenhower Presidential Library. Also, see
Dwight D. Eisenhower, Waging Peace (Doubleday, 1965), p.
556; and George B. Kistiakowsky, A Scientist at the White
26
House (Harvard University Press, 1976), p. 334. “In other Geoff Brumfiel, “Analysts spar over launch image”,
settings, the Soviets did not initially distinguish between Naturenews 8 April 2009.
27
satellite and aerial overflights and denounced both as an Joanne Irene Gabrynowicz, “Satellite spots activity at North
illegal infringement on national sovereignty.” See Gerald Korean missile site, officials say,” Res Communis 29 March
Steinberg, Satellite Reconnaissance: The Role of Informal 2009, http://rescommunis.wordpress.com (accessed March
Bargaining (Praeger, 1983), pp. 26–29. 2009).
put a satellite in orbit; it argues this activity follow all necessary international procedures
falls under the treaty’s allowances that outer for launching a satellite:
space “shall be free for exploration and use by
all states without discrimination of any The Radio Regulations of the
kind.” 28 The argument has gained traction in International Telecommunication
Union (ITU), to which North Korea
parts of the global community. China has also belongs, stipulates that the
refused to condemn the launches asserting launch of a communications satellite
North Korea has the right to peaceful use of needs to be announced in advance.
space. 29 Even Japan agrees North Korea has a The regulations also require member
right to a space program, “but only after it states to give prior notice of a
satellite’s operating frequency, its
denuclearized and no longer posed a threat.” 30 orbital location and other information
to the ITU two to seven years before
“The Korean communist regime has been a satellite goes into use. However,
careful to follow the spirit of the treaty, North Korea did not give such prior
keeping the world appraised of its plans, notice to the ITU, the sources said. 34
unlike its unannounced missile launches in
1998 and 2006.” 31 In asserting its rights to The North Koreans protest that they are only
launch a satellite, North Korea notified the engaged in peaceful space activities. Yet they
International Civil Aviation Organization and make bellicose threats of dire consequences
International Maritime Organization that it for any one attempting to interfere with them
intended to launch an “experimental or other state activities. These mixed signals
communication satellite.” 32 It also made a complicate planning for potential missile
notification of the launch in accord with the defense intercepts of these launched systems,
Registration Convention. 33 Despite these since the U.S., its allies, and most nations
efforts, and underscoring the potential for an subscribe to the free passage rules for space.
underlying deception, North Korea did not The U.S. does not want to be seen as denying
that right even if the complaining nation is
involved in a ruse.
28
Joanne Irene Gabrynowicz, “North Korea launch a test for Beside the North Korean launches, other
international law”, Res Communis 2 April 2009, proposals related to free passage remain in
http://rescommunis.wordpress.com (accessed April 2009).
29 controversy, and could also be sources of
“China says North Korea has right to peaceful use of
space,” The China Post 8 April 2009. conflict involving space systems. For
30
“Japan Says North Korea Space Program OK after example, some argue for a new legal
Denuclearization,” Space War 7 April 2009, definition for the demarcation between a
http://www.spacewar.com/reports/Japan_Says_NKorea_Spac
e_Program_OK_After_Denuclearisation_999.html (accessed
country’s air space (Earth’s atmosphere) and
April 2009). outer space. The U.S. does not officially
31
Joanne Irene Gabrynowicz, “North Korea launch a test for accept a specific “boundary;” instead, it
international law” Res Communis 2 April 2009,
http://rescommunis.wordpress.com (accessed April 2009).
employs a functional approach to assert space-
32
Joanne Irene Gabrynowicz, “North Koreans have notified related free passage and transit rights.
several UN agencies that they plan on launching”, Res Unfortunately, if boundaries for the definition
Communis 12 March 2009, http://rescommunis. of space are strictly defined sometime in the
wordpress.com, quoting, Robert Wood, U.S. Department of
State, Daily Press Briefing – March 12 (accessed March
34
2009). Joanne Irene Gabrynowicz, “North Korea ‘ignored satellite
33
Joanne Irene Gabrynowicz, “North Korea Accedes to procedures’”, Res Communis 8 April 2009,
Registration Convention”, Res Communis 11 March 2009, http://rescommunis.wordpress.com, citing The Daily
http://rescommunis.wordpress.com (accessed March 2009). Yomiyuri (accessed April 2009).
future by action of treaty or through careful to carry them out from their
customary international law development, this own territories, and no protests have
ever been recorded in respect of any
could dangerously affect necessary space- launchings, wherever they took place.
related rights. The development of customary However, as Wassenbergh observes,
law on the subject of free passage and transit ‘There is not a right of instant
rights has been described by Isabella customary international law that
Diederiks-Verschoor: space objects can “freely” transit
through foreign airspace. The fact
that in practice so far no objections
Some seem to accept silent have been raised against foreign
acquiescence as sufficient ground for space objects transiting a State’s
the existence of a rule of custom, airspace is no reason to refer to a
others feel that explicit recognition is customary right of transit, as too few
an essential requirement… Clearly, States are considered to be confronted
the crux of the matter centers around with such transit (and none have
the element of ‘recognition’ as been), and no opinion juris with
evidence of acceptance of a specific respect to such practice has been
practice, and the form such pronounced as yet.
recognition can take. Even if a right of transit for space
…Van Bogaert considers it an objects through the airspace of
essential necessity that states show foreign countries is universally
‘by diplomatic intercourse’ that they agreed upon it will always have to be
recognize a certain norm as legally subject to guarantees of safety and
binding. Custom inevitably implies a security.
certain period of time, but Van All this leads you to conclude that
Bogaert feels that there is no need for customary law is already playing a
a practice to be long-lasting, provided significant role in space law, and that
recognition is properly signaled. He states have evidently found it
also notes that it might be logical to necessary, if not expedient, to abide
consider approval by the UN General by its rules. 35
Assembly as an expression of such
recognition.
As regard to the time factor, Judge Some proponents argue space should be
Lachs of the International Court of defined as beginning at 100 kilometers (km)
Justice agrees that that a short period above sea level. This is known as the Kármán
of time is not in itself a bar to the Line, calculated by and named for Theodore
formation of a new rule of customary
law. He suggests that a kind of ‘right
von Kármán. This demarcation has been
of innocent passage’ has evolved on accepted by the Fédération Aéronautique
the basis of reciprocity, pointing out Internationale (FAI). 36 However, if adopted by
that on a number of occasions states action of treaty or customary law, returns of
engaged in space activities, which did U.S. and allied spacecraft could be threatened.
not inform other states of their plans
to launch space objects or ask
The threat would not be limited to just purely
permission to pass through the military systems, as civil and commercial
airspace of other states, did not meet systems would be put at risk. The Soviet
objections from the states concerned,
nor did those states reserve for
35
themselves the right to object to such See Isabella Henrietta Philepina Diederiks-Verschoor, An
flights. Introduction to Space Law (Kluwer Law International, 1999),
The debate on this matter has pp. 11-12.
36
hitherto remained entirely academic: See “The 100 km Boundary for Astronautics,” Fédération
both the USA and the former USSR, Aéronautique Internationale Press Release, 24 June 2004,
responsible as they are for most space http://www.fai.org/press_releases/2004/documents/1204_100
km_astronautics.doc (accessed June 2009).
object launchings, have always been
Union reserved the right to shoot or bring These norms have arisen out of case law and
down aircraft in its airspace, and did so with changing political policy-making attitudes,
alarming and tragic deadly effect for Korean and can be found where there is a clear
Air Lines 007 during the early 1980s, and with international disapproval of specific practices
other highly publicized commercial aircraft or acts.
incidents. Given the risks, the U.S. and its
allies might be forced to employ deterrence There is some disagreement over how
strategies and/or prepare for conflict if a state peremptory norms should be acknowledged
wanting adoption of the Kármán Line also and put into force. The relatively new concept
threatens spacecraft that cross below it above conflicts with the traditional consensual nature
their territory. Given these complications, the of treaty and customary international law that
U.S. has not agreed to the definition. ensures state sovereignty. According to Rafael
Nieto-Navia, there are three pre-requisites
Another important legal concept, the (some a bit tautological in nature) for a norm
peremptory norm (also called jus cogens, to be “elevated” to the status of a norm of jus
Latin for “compelling law”), affects state and cogens. 40 First, the peremptory norm must be
non-state actor obligations with regard to a norm of general international law. General
space conflict. The concept is related to, but international law is international law binding
differs, from customary law. The peremptory on most, if not all, states; however, not all
norm is a principle of law from which no facets of general international law have the
violation is permitted, even by treaty. “Unlike character of jus cogens. The rules do not exist
ordinary customary law that has traditionally “to satisfy the need of the individual states,
required consent and allows the alteration of but the higher interest of the whole
its obligations between states through treaties, international community…” 41 This need can
peremptory norms cannot be violated by any be seen in rules created to achieve
state.” 37 Under the Vienna Convention, any humanitarian purposes.
treaty that conflicts with a peremptory norm is
void. 38 New peremptory norms can develop Second, the norm must be “accepted and
under the Convention, 39 but the document recognized by the international community of
does not itself specify any specific norms or States as a whole.” 42 Accepting and
how they are developed or created. recognizing a norm within the international
community can be either express or implied.
Peremptory norms have not been fully Ascertaining the minimum breadth necessary
itemized, but they include injunctions against for acceptance is subject to debate; the
waging aggressive war, crimes against international community tries to avoid
humanity, war crimes, maritime piracy, situations whereby one or a few rogue states
genocide, apartheid, slavery, and torture. can effectively negate any decision to
designate a norm as peremptory. Thus, a norm
can be considered as jus cogens if it is
37
U.S. Legal Definitions, “Peremptory Law & Legal accepted and recognized by the international
Definition,” http://definitions.uslegal.com/p/peremptory
(accessed January 2010).
38 40
Vienna Convention on the Law of Treaties, Article 53. Rafael Nieto-Navia, “International Peremptory Norms (Jus
39 Cogens) and International Humanitarian Law,” 2003,
“Emergence of a new peremptory norm of general
international law (jus cogens): If a new peremptory norm of http://www.iccnow.org/documents/WritingColombiaEng.pdf,
general international law emerges, any existing treaty which (accessed June 2009), p. 10.
41
is in conflict with that norm becomes void and terminates.” Ibid.
42
See Vienna Convention on the Law of Treaties, Article 64. Ibid.
community of States as a whole; consent of all whole and from which no derogation is
states is not required (similar in the way in permitted at all; norms which are necessary
which principles of general customary for the stability of the international juridical
international law are formed). In this way, order; norms having humanitarian objects and
norms of jus cogens can be drawn from the purposes including certain principles of
traditional sources of international law – human rights and international humanitarian
treaties, international custom, and the like. 43 law; norms of general interest to the
international community as a whole or to
It is a well-accepted principle that treaties do international public order; and norms, which
not bind non-parties without their consent. are binding on all new states even without
Nieto-Navia contends that exceptions to this their consent as being established rules of the
principle are those conventions or treaties international community. 46
whose objects and purposes render them more
important. Ultimately, Without question, international law undergoes
if provisions of treaties Without continuous change and is constantly evolving.
or conventions satisfy question, This means new norms of jus cogens should at
the more important international least in theory continue to develop with
criteria to be recognized law respect to the law of space systems, their
as jus cogens, states not operations, and space warfare. Examples of
party to them will also undergoes acts being contrary to the norms of jus cogens
be bound by their continuous would appear to include interfering with some
provisions. Of course, a change and important space systems, especially those
large portion of is constantly presenting NTM, missile warning, emergency
international law evolving. communications, and even PNT capabilities.
remains customary in
nature and treaties often only codify the Space-borne NTMs serve an important role:
existing customary law rules, and do not assuring adversaries that they have complied
establish peremptory norms. 44 with arms control treaty terms; providing
transparency, enhancing confidence in actions
As a third prerequisite, the norm must be one of others, and diffusing tensions; and helping
from which no derogation is permitted. It can stem the potential of a nuclear holocaust,
be modified only by a subsequent norm of which would produce a catastrophe whose
general international law of the same damaging effects would be global in nature.
character. This “is in fact the main identifying Reserving access to such NTM systems by
feature and “essence” of a norm of jus antagonists would therefore appear to be a
cogens.” 45 peremptory norm; hence, this would proscribe
any attacks on such systems to destroy,
Nieto-Navia suggests it is possible to classify disable, or otherwise interfere with them.
norms that are not subject to derogation by Proscribing such attacks would satisfy the
treaties or otherwise. These are: norms that higher needs and general interest of the whole
have a fundamental bearing on the behavior of international community.
the international community of states as a
Interestingly, the term “National Technical
43
Ibid., pp. 10-11. Means” (NTMs) was not specifically defined
44
Ibid., p. 11.
45 46
Ibid., p. 12. Ibid., pp. 12-13.
and detailed in the original Anti-Ballistic Indeed, this point was raised in a formerly
Missile (ABM) Treaty, nor in subsequent arms classified document, where the late Secretary
control treaties. Some argue this could lead to of Defense Melvin R. Laird argued the U.S.
a finding that if satellite systems were not should acknowledge:
specified and described fully in the treaty they
should somehow not warrant the treaty’s …the fact that national technical
protection. 47 While not specific, the “NTM” means of verification for the U.S. and
the USSR include satellite based
term references the variety of land, air, sea, reconnaissance. We should further
and space technologies and systems that can state that all our legitimate national
be used to monitor and verify treaty technical means, including satellite
compliance. If the treaty’s language could be based reconnaissance, taken together,
interpreted to disallow classifying of any give us confidence that we can verify
compliance with the provisions of
system as an NTM, even a space system, then these agreements within satisfactory
the provision barring interference would limits… the fact of U.S. satellite
appear to have no meaning or effect. Nothing reconnaissance is widely known. I
in the record supports such a result as the believe that acknowledging this fact
intent of the signatories. The Vienna in connection with the strategic arms
limitation agreements has the
Convention holds that treaties are to be important advantage of muting
interpreted “in good faith” 48 and “ordinary possible adverse reaction… 50
meaning given to the terms of the treaty in
their context and in the light of its object and The Russian and the U.S. positions on limiting
purpose.” 49 Consent may be implied if the interference with NTMs have been set out in
other parties fail to explicitly disavow an treaty and agreement. China, Canada, the
initial unilateral interpretation, particularly if United Kingdom, France, and other significant
that state has acted upon its view of the treaty spacefaring powers have made
without complaint. For the purposes of this pronouncements condemning interference
discussion, satellite systems can be employed with such systems, and supporting the
to monitor treaty compliance and thus can be transparency efforts. A norm that favors
classified as NTMs. protection of spaceborne NTMs should be
supported at least by global spacefaring
nations, if not the international community of
states as a whole; no overarching alternate
47
norm, stripping these protections, has been
Peter L. Hays suggests that the language of the ABM Treaty
“clearly stops well short of being a blanket anti-satellite
proposed.
(ASAT) weapons ban or even a clear approval of all spying
from space.” He argues: “it is questionable just how much Similar arguments can be made with regard to
protection or legitimization it provides for NTM or satellites
more generally.” See Peter L. Hays, “U.S. Military Space:
spaceborne missile warning and emergency
Into the Twenty-First Century,” INSS Occasional Paper 42 communication capabilities that these should
(U.S. Air Force Institute for National Security Studies (INSS) not be attacked or interfered with. These
and Air University Press, 2002), p. 58.
48 systems would help adversaries to understand,
“Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.” See Vienna
50
Convention on the Law of Treaties, Article 26. See Melvin R. Laird, “Memorandum for Assistant to the
49
“A treaty shall be interpreted in good faith in accordance President for National Security Affairs, Subject: Revelation of
with the ordinary meaning to be given to the terms of the the Fact of Satellite Reconnaissance in Connection with the
treaty in their context and in the light of its object and Submission of Arms Limitation Agreements to Congress,” 8
purpose.” See Vienna Convention on the Law of Treaties, June 1972, http://www.gwu.edu/~nsarchiv/NSAEBB/
Article 31.1. NSAEBB231/doc02.pdf (accessed January 2010).
manage, and limit the extent of damage How are the parties to judge whether
associated with exchanges of weapons of mass space-based NTM are engaged in
legitimate treaty compliance
destruction, all to the benefit of the global verification or in general espionage
community. Arguments that peremptory and how much noninterference
norms proscribe attacks on space-based PNT should they be given in either case?
capabilities could also be made. Proponents An ASAT attack on space-based
for this position would be bolstered by NTM attempting to verify compliance
with the treaty would surely
demonstrating the dimensions of the effects constitute “interference,” but how
and global chaos that could occur in the about lesser levels of nondestructive
commercial and civil communities as a result interference such as laser “dazzling?”
of the destruction of these capabilities. While What about interference that takes
these arguments are less compelling from ones place in portions of the orbit that do
not pass over the territory of the
tied to preventing conflict with weapons of treaty signatories? Based on these
mass destruction, they could be made just the questions and despite the NTM
same and, perhaps, accepted. protection these provisions were often
alleged to provide in the heyday of
No matter their importance, it would seem détente, the provisions in the ABMT
[ABM Treaty] should not be seen as
NTMs and/or other systems would warrant constituting an ASAT prohibition or
less protection if their mission payloads as granting a strong and specific level
become blended with other more active, non- of legal protection for NTM at all
protected warfighting functions (e.g., times. Even more importantly, the
supporting integrated fire control and targeting amount of “protection” this language
provides for all other civil,
functions for missile defense, or deploying commercial, and military space
spacecraft platforms or collocating command systems – including commercial
and control stations that involve a myriad of remote sensing systems that might or
payloads, not just protected missions and might not be performing NTM
payloads, but other militarily important missions – would seem to be even
more tenuous. 51
payloads). If a peremptory norm applies, this
could complicate national security space
system acquisition and operational strategies,
Treaties and Customary Law
limiting how systems could be configured, in
order to preserve any jus cogens protection
Article III of the OST declares that states
rights. Since NTMs and other systems are
parties must conduct their space activities “in
usually employed to support a wide variety of
the interest of maintaining international peace
warfighting missions, this reality could
and security.” The treaty’s preamble also
swallow whole the concept of a peremptory
recognizes “the common interest of all
norm protecting them, unless their mission
mankind in the progress of exploration and
attributes and operations are carefully
use of outer space for peaceful purposes.” 52
restricted. Protections for such blended
systems would need to be found elsewhere in
treaty or customary law. 51
Peter L. Hays, “U.S. Military Space: Into the Twenty-First
Century,” INSS Occasional Paper 42 (U.S. Air Force Institute
Peter Hays spotted this problem when he for National Security Studies (INSS) Air University Press,
2002), pp. 58-59.
posed the following questions and suggested 52
Article IV places the “peaceful purposes” restriction on the
the ABM Treaty might not provide protected Moon and other bodies; it suggests that States may engage in
status to some spy satellite activities: non-peaceful activity in space as long as it does not occur on a
Though crafted before the space era, a careful security, and justice, are not endangered.” 55
reading of the UN Charter shows its terms are Article 2(4) of the Charter presents another
fully consistent with and encourage peaceful significant rule: “States shall refrain from the
space activities. The first purpose of the UN is threat of or use of force against the territorial
to “maintain international peace and security, integrity or political independence of any
and to that end: to take effective collective state. 56 The phrase “international peace and
measures for the prevention and removal of security” contained in Article 2(3) is echoed in
threats to the peace, and for the suppression of the later agreed-to OST. The repetition of the
acts of aggression or other breaches of the words “international peace and security” in
peace, and to bring about by peaceful means, the OST links “peaceful purposes” back to
and in conformity with the principles of norms of “peaceful means” enunciated in the
justice and international law, adjustment or UN Charter. 57
settlement of international disputes or
situations which might lead to a breach of the Some believe that under the UN Charter, war
peace.” 53 was outlawed. 58 While not entirely correct, the
Charter firmly establishes the general
The UN and its 1945 Charter arose out of the principle that armed conflict is neither proper
ashes of the League of Nations and failures of nor inevitable, irrespective of the political
the international community that led to World purposes or merits. This new view replaced
War II. Despite its inadequacies, the League the ancient Augustinian “just war”
helped establish the groundbreaking Kellogg- formulation. 59 Still, despite its imperative for
Briand Pact of 1928, also known as the Pact preserving international peace and security,
of Paris – this treaty is continues in force the Charter does not ban all use of force. The
today. In Kellogg-Briand, the signatories document outlaws the aggressive use of force,
condemned recourse to war as a solution to and the aggressive use of force has become an
international controversies, and renounced it international crime. 60
as an instrument of national policy in their
relations among each other. It proscribed the “Acts of aggression” are not defined within
threat and use of force in contravention of the Charter. Indeed, the definition for “act of
international law, and territorial acquisitions aggression” has been debated over the
resulting from such actions. 54 decades. Some argue the term was left
undefined on purpose, that if a list of acts
The UN Charter’s language expands on the were specifically set out as “aggression.” then
terms set out in Kellogg-Briand Pact. Article anything not making the list might not count;
2(3) provides: “All members shall settle their
international disputes by peaceful means in 55
UN Charter, Article 2(3).
such a manner that international peace and 56
UN Charter, Article 2(4).
57
J.P. Blount, “Limits on Space Weapons: Incorporating the
Presented to the International Institute of Space Law
Colloquium, International Astronautics Congress, Glasgow,
celestial body. Indeed, some argue this is how the U.S. UK, October 2008, p.3.
58
officially interprets this article. Oscar Schachter, “The Right of States to Use Armed
53
UN Charter, Article 1(1). Force,” Michigan Law Review 1620 (1984).
54 59
The Pact was concluded outside the League of Nations and Saint Augustine believes that a war was just when it was
remains a binding treaty. Importantly, the Kellogg-Briand waged in order to redress a wrong or unjust enrichment.
60
Pact was used as a foundation for the post World War II See UN Charter 1(1), and, generally, Antonio Cassesse,
prosecutions at Nuremburg. International Criminal Law (2003), pp. 110-125.
the signatories did not want to leave an official statements of numerous States
opening for unseemly argument by dealing with their respective space
programs. 64
aggressors. 61 Even so, insight into the term’s
meaning can be found in UN General
While the principle of “peaceful purposes” has
Assembly Resolution 3314 (1974). 62 “This
most likely entered customary international
resolution defines aggression as ‘the use of
law and now applies to space activities, the
force by a State against the sovereignty,
meaning of that term is even now a bit
territorial integrity or political independence
uncertain – uncertain in part because the
of another State, or in any other manner
phrase is undefined and because nations apply
inconsistent with the Charter of the UN.’
it in different ways. 65 Some argue the phrase
Since one of the UN Charter’s purposes is to
means any military use of space violates the
maintain international peace and security,
treaty. 66 This is a decided minority view.
States may not use force in a way that disturbs
Though there are limits, the alternate U.S.
international peace and security.” 63
view is military space activities are presumed
to be allowed unless specifically prohibited by
Given the over-half century of rule-making
law. Naturally, the permissive U.S. position
and statecraft just discussed, P.J. Blount
generates consternation within peace elements
argues the OST’s principles of peaceful
of the international community, who argue the
purposes for outer space can now be found in
U.S. seeks to preserve its hegemony in and
international customary law. According to
dominance of the space domain. Nevertheless,
Blount:
the U.S. view is compelling, convincing, and
The principle of the peaceful uses of
clarifying – longstanding customary practice
outer space can be found throughout and law permits military use of space. As
the literature on space law; however, noted by Adam Frey:
the Outer Space Treaty only uses the
term “peaceful purposes” to refer to Military use of space in support of
outer space in the preamble of the operations – such as communications,
treaty. It is used in the body of the intelligence gathering, and precision
treaty to refer to the Moon and other targeting – is commonly considered
celestial bodies, but not to outer space peaceful if it does not violate other
in general. There is, however, strong international law. In other words,
support for the term applying to outer space operations are considered
space via customary international law peaceful, provided they are not
from the term’s use in the preambles “aggressive.” Space may still be used
to both the Declaration of Legal as a medium of warfare: the treaty
Principles Governing the Activities of does not prohibit anti-satellite
States in the Exploration and Use of (ASAT) weapons or even nuclear
Outer Space and in the Outer Space weapons that merely transit space.
Treaty to its use in laws, policies, and Other weapons may be deployed in
61 64
“Indirect aggression,” however, has not found favor as an Ibid., p. 2.
65
“act of aggression.” Ibid., p. 2.
62 66
See Definition of Aggression, UN General Assembly Adam E. Frey, “Defense of U.S. Space Assets: A Legal
Resolution 3314, UN GAOR, 29th Session, Supplement No. Perspective,” Air & Space Power Journal (Winter 2008),
31, UN Doc. A/9631 (1974). http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/
63
P.J. Blount, “Limits on Space Weapons: Incorporating the win08/frey.html (accessed June 2009). Also, see Joan
Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, Johnson-Freese, “The Viability of U.S. Anti-Satellite (ASAT)
Presented to the International Institute of Space Law Policy: Moving Toward Space Control,” INSS Occasional
Colloquium, International Astronautics Congress, Glasgow, Paper 30 (U.S. Air Force Institute for National Security
UK, October 2008. Studies (INSS), January 2000), p. 10.
space so long as they are neither militarization of space by the global powers. 71
nuclear weapons nor weapons of The intent of the OST’s framers and an
mass destruction. Furthermore, self-
defensive acts in space are also
interpretation of its terms allowing military
permissible, provided they do not activities in space can readily be ascertained
violate other treaty restrictions. 67 by looking to the practices of major
spacefaring powers. They continue to use
As touched on above, the “U.S. employs a space for military purposes following
permissive interpretation of the OST and the endorsement of the OST.
other rules regulating military activities in
space.” 68 The traditional U.S. interpretation, When U.S defense officials’ writings mention
shared by most other spacefaring countries, is the OST, they typically insist U.S. policy and
“nonaggressive” military support activities are military uses of space not explicitly prohibited
not inconsistent with the peaceful-use in Article IV (i.e., no weapons of mass
principle. 69 But what are “aggressive acts” in destruction in orbit and military activities on
space? How should they be defined? Should celestial bodies) are permitted. 72 Some suggest
such acts be defined and limited to effects this posture ignores Article III’s declaration
produced on just spacecraft, or should effects that space activities must be performed in
to the entirety of space systems be considered accord with international law, including the
(e.g., spacecraft, their constellations, links, UN Charter’s rules about the threat or use of
footprints for sensor and communications force. 73 Nonetheless, and consistent with its
activity, ground control stations, or even views, the U.S. has steadily expanded the
sustainment and acquisition activities)? Some scope of its “peaceful” non-aggressive
suggest the definition of “aggressive acts”
should encompass actions, such as the use of 71
force from space or in space when not According to Thomas C. Wingfield, “Legal Aspects of
Offensive Information Operations in Space,” 23 March 2000,
consistent with exceptions found within the p. 6, http://www.au.af.mil/au/awc/awcgate/dod-io-legal/
UN Charter. Others argue the “peaceful wingfield.doc (accessed January 2010): “Nowhere in the
purposes” clause should be interpreted to Outer Space Treaty is the term [“Peaceful purposes”] defined,
and two opposing views have developed. The majority
mean states cannot use outer space for full- opinion, certainly among spacefaring nations, is that
scale warfare, particularly nuclear war. 70 “peaceful” means “nonaggressive,” a relatively high standard
allowing for considerable military operations in space. The
minority view, more common among the less advanced, non-
Those who continue to argue any military use spacefaring nations, is that “peaceful” means “nonmilitary,”
of space violates peaceful use principles setting such a low threshold that even routine, peacetime
ignore reality of the long-standing military business, such as communications and weather
observation, would be prohibited.”
72
Interestingly, during hearings on the ratification of the Outer
Space Treaty, it was noted that “Secretary of State Dean Rusk
67
asserted that while the U.S. was confident in its ability to
Ibid. adequately verify the OST prohibition on nuclear weapons
68
Nancy Gallagher and John D. Steinbruner, Reconsidering and weapons of mass destruction, that ‘the treaty does not
the Rules for Space Security, American Academy of Arts and inhibit, of course, the development of an anti-satellite
Sciences, Reconsidering the Rules of Space Project, capability in the event that should become necessary.” See
Cambridge, Massachusetts, 2008, p. 42. Peter L. Hays, “U.S. Military Space: Into the Twenty-First
69
Ivan Vlasic, “The Legal Aspects of Peaceful and Non- Century,” INSS Occasional Paper 42 (U.S. Air Force Institute
peaceful Uses of Outer Space,” in Peaceful and Non-peaceful for National Security Studies (INSS), Air University Press,
Uses of Space, Bhupendra Jasani, ed., (Taylor and Francis, 2002), p. 70.
73
1991), pp. 37–55. Nancy Gallagher and John D. Steinbruner, Reconsidering
70
Christopher M. Petras, “Space Force Alpha: Military Use of the Rules for Space Security, American Academy of Arts and
the International Space Station and the Concept of ‘Peaceful Sciences, Reconsidering the Rules of Space Project,
Purposes,’” Air Force Law Review 53 (2002): 157-61. Cambridge, Massachusetts, 2008.
military space activities, often for the orbit, and restricts such weapons and military
betterment of the global community and bases on celestial objects. In parallel, the
benefiting potential adversaries. GPS (Global Limited Test Ban Treaty restricts nuclear
Positioning System) PNT, SSA, missile explosions in space. 76 Even so, the UN
warning, and communication services Charter and OST do “not prohibit States from
operated by U.S. military systems have been placing weapons of a defensive nature in
used and exploited by global military, civil, space (unless some further meaning can be
and commercial communities. attributed to the term peaceful purposes) or
from placing weapons required by order of the
A tacit acceptance of the U.S. behavior has UN Security Council in order to maintain
emerged; indeed, all of the major spacefaring international peace and security. Probably the
nations have expanded their military activities difference between an aggressive weapon and
in space. Also, performing military activities a defensive weapon can almost always be
in space may have inherently humane ends, found in its use.” 77 Or, the difference can be
even in support of destructive or deadly found in the politics or diplomacy of its use.
military operations. Elizabeth Waldrop
correctly notes LOAC principles of What is a “space weapon?” The devil is in the
discrimination and proportionality are details, especially given the variety of ways
enhanced by the use of space assets “to we discussed above in which space systems
successfully carry out near-surgical strike with can be attacked and degraded. Should the
minimum civilian casualties.” 74 In the end, definition of space weapon include systems or
however, the “various unopposed military combat operations that attack terrestrial
uses of space may as a practical matter enlarge components of space systems, or jam or
the unofficial definition of ‘peaceful purposes’ interfere with system command and control?
to the point that specific arms control Should it encompass seemingly innocuous
agreements may be the only effective civil satellites or microsatellites that can be
limitation on development and deployment of vectored to kinetically engage adversary
various weapons in space.” 75 systems; or systems left dead in orbits,
without executing end-of-life super-sync or
other operations to reduce chances of
Space Warfare collisions with other satellites. Perhaps, the
definition of “space weapon” should be broad:
Despite the histrionics of the peace and an instrument or instrumentality of attack or
disarmament community, the conduct of defense used to fight space systems or from
military space activities is an accepted the space domain.
practice and consistent with the OST and other
agreements. Plainly, the OST, conventions, 76
Article IV of the Outer Space Treaty restricts military
and international agreements do not foreclose activity and prohibits placing “nuclear weapons or any other
space warfare or preparation for such conflict. kinds of weapons of mass destruction” into orbit or
There are caveats to this point, however. The permanently affixing them to a celestial body. Also, the Moon
and other celestial bodies may be used only for “peaceful
OST expressly limits placement of nuclear purposes,” and they cannot be used for military bases or
weapons and weapons of mass destruction on weapons testing.
77
P.J. Blount, “Limits on Space Weapons: Incorporating the
74
Elizabeth Waldrop, “Weaponization of Outer Space: U.S. Presented to the International Institute of Space Law
National Policy,” High Frontier (Winter 2005): 40–41. Colloquium, International Astronautics Congress, Glasgow,
75
Ibid., 36–37. UK, October 2008, p.4.
U.S. Congressman Terry Everett argues: built with destructive intent to be

used in a terrestrial-to-space, space-
Some believe a space weapon is to-space, or space-to-terrestrial
purely a weapons system based in capacity” …I recognize that
space that collides with another space alternatives exist, usually depending
object or intercepts a missile traveling on which side of the debate the
through space. However, I would definer sits. Contention focuses on
argue, the damage caused by a whether ground-based weapons
ground-based high energy laser is just should be included… Some
as severe for a target satellite as the definitions include as a space weapon
damage caused by a physical on-orbit a defensive interceptor such as
collision. The key difference is the THAAD or Aegis SM-3 when the
latter may create unacceptable debris planned interception is OUTSIDE the
field, posing further risks to satellites. atmosphere, but exclude the use of
It is the ambiguity in definition Patriot PAC-3 and THAAD when the
that makes arms-control measures, planned interception is WITHIN the
which ban space weapons difficult to atmosphere. This is a particular issue
implement and nearly impossible to for THAAD which has both an exo-
enforce. This is compounded by the and an endo-atmospheric capability.
fact that satellites have tremendous There is no consensus [on the
dual-use value, making it very definition]. 79
difficult to distinguish a non-weapon
space system from a weapon space Michael Krepon and Michael Katz-Hyman
system. Any satellite could be believe their definition:
maneuvered in such a way as to
collide with a target satellite. Any …respects the distinction between
ballistic missile, with sufficient capability and actuality. It excludes
orbital ephemeris data and software residual or latent space warfare
changes, could be used to target a capabilities, such as ballistic missiles.
satellite. 78 Also excluded in this working
definition are satellites that provide
Dr. Michael Rance, a United Kingdom missile essential military functions, but do
defense and space policy expert and leader not serve as weapon platforms. In
proffers: other words, the definition used here
clarifies the essential distinction
between the current military uses of
There is no formal definition of space and the flight-testing and
“weaponization of space” or “space deployment of space weapons that
weapons,” but some have tried. some wish to pursue in the future.
Michael Krepon and Michael Katz- This definition also excludes
Hyman propose this (citation activities that are specifically
omitted): “terrestrially based devices designed to interfere with the uplinks
specifically designed and flight-tested or downlinks of satellites. Jamming is
to physically attack, impair, or treated separately from direct,
destroy objects in space, or space- physical attacks against satellites
based devices designed and flight- because jamming has long been
tested to attack, impair, or destroy considered a part of warfare, whereas
objects in space or on Earth.” Bruce direct attacks in or from space would
DeBlois suggests something similar:
“A space weapon is that which is
78 79
Terry Everett, “Arguing for a Comprehensive Space Michael Katz-Hyman and Michael Krepon, “Viewpoint:
Protection Strategy,” Strategic Studies Quarterly (Fall 2007): Space Weapons and Proliferation,” Non Proliferation Review
32-33. 12: 2 (July 2005): 325-326.
be consequential firsts in the history Bruce Hurwitz argues in The Legality of Space
of warfare. 80 Militarization, “Considering the spirit of the
law, the conclusion appears to be that anti-
The challenge of identifying space weapons in satellite weapons are legal, de lege late, but
terms of just exactly where and under what should be illegal, de lege ferenda.” 83 The
conditions they exist is highly complex. principle of non-aggression places an
Robert A. Ramey opines: affirmative duty on States not to station
weapons of an aggressive nature in outer
(The) basic term space weapon lacks
definition in international law. As a
space; examples of such provocative
result, the concept it represents, aggressive acts could be the deployment of a
which broadly speaking includes any co-orbital mine in the vicinity of a
implements of warfare in space, is competitor’s military space asset, performing
difficult to isolate. Without this “intercepts,” or creating conditions for or
foundational definition, one cannot
define phrases on which it might rely.
causing conjunctions between satellites and
The difficulty comes into particular objects on orbit.
focus by observing that any
comprehensive definition of space Despite the steady expansion in military use of
weapons will include space systems space by global space powers, considerable
equally used for nonmilitary,
nondestructive, and nonaggressive
mutual restraint has been exercised with
purposes. Though space weapons respect to deployment of space-based
may seem to include only a discrete weapons. No space-based weapon, that is, an
class of armaments with easily instrument or instrumentality of attack or
definable characteristics, a closer defense used to fight space systems or from
examination “reveals a less obvious
and more inclusive set of systems.” 81
the space domain, is deployed on-orbit today.
This reality has occurred because global
Despite the challenges in the definition, no policy-makers have come to appreciate the
treaty bans conventional space weapon terrifying practical consequences of space
systems, so it can be concluded that weaponization and resulting conflict: the
“nonnuclear ASAT weaponry is… legal.” 82 debilitating problems and physics of resulting
Yet a conclusion that ASAT weapons are legal space debris if the weapon systems are used;
does not give state parties license or authority the indiscriminate nature and consequences of
to use or station conventional weapons in employing nuclear weapons in space as borne
outer space (on orbit or otherwise); such out by the Starfish Prime experiment
activities must be conducted within the conducted by the U.S. in the early 1960s; the
framework offered under treaties and stakes space-dependent nations risk if they
customary international law, which encourage plan for such conflict; and the loss of stability
the non-aggressive “peaceful use” of space. In in the space domain, which is increasingly
the end, these activities and interests must be globalized in an interdependent world.
balanced against the other. Keeping in line with this thinking, proscribing
interference with NTM monitoring
capabilities was a rather pragmatic choice to
80
Ibid. enable the super powers to advance nuclear
81
Independent Working Group on Missile Defense, the Space weapons reductions over the past four
Relationship, and the Twenty-First Century, 2007 Report
(Institute for Foreign Policy Analysis, 28 August 2006), p. 73.
decades.
82
See Bruce A. Hurwitz, The Legality of Space Militarization
83
(North-Holland, 1986), p. 127. Ibid., p. 128.
Some states protest the continuing expansion The “threat of the use of force” is defined as:
of some U.S. military space activities, believe
more should be done to limit them, and have Any hostile actions against outer
pushed for adoption of proposed treaties, such space objects including, inter alia,
actions aimed at destroying them,
as the Treaty on the Prevention of the damaging them, temporarily or
Placement of Weapons in Outer Space, the permanently disrupting their normal
Threat or Use of Force against Outer Space functioning or deliberately changing
Objects (PPWT), presented as part of the UN their orbit parameters or the threat of
Conference on Disarmament’s (CD) such actions. 86
discussion on the Prevention of an Arms Race
in Outer Space (PAROS). The proponents However, as conceded by Russians and
suggest the progress of science and Chinese, verification of such a PPWT treaty
technology make it necessary to strengthen would be extremely difficult. Also, the PPWT
international principles relating to reducing does not ban development and testing of
potential threats. The Chinese argued that a Earth-based ASATs. Even disarmament
peaceful and tranquil outer space free from groups, like Project Ploughshares, concede the
weaponization and arms race serves the “the PPWT lacks precision, has potential
common interests of all countries, and the loopholes, or is subject to interpretation.” 87
Russians argued that the security of outer This is a sad state of affairs for a major arms
space is facing serious challenges.” 84 The control proposal. Given these defects, the
PPWT seeks to ban two interrelated conducts: Russians and others suggest agreements on
the placement of weapons in outer space; and Transparency and Confidence Building
the threat or use of force against outer space Measures could be implemented to
objects. compensate for them and move the process
along.
The proposed PPWT treaty defines “weapon
in outer space” as: For its part, the U.S. has pushed back, first
abstaining, then voting “no” to reject the
Any device placed in outer space, PAROS proposals. Under the George W. Bush
based on any physical principle, administration, it argued the existing
which has been specifically produced multilateral arms control agreement regime is
or converted to destroy, damage, or “sufficient,” there is no present “problem in
disrupt the normal functioning of
objects in outer space, on the Earth or
outer space for arms control to solve, and the
in the Earth’s atmosphere, or to proposed treaty does adequately dispose of
eliminate a population or components threats posed by ground based systems.” 88
of the biosphere, which are important
to human existence or to inflict Despite its own issues associated with
damage on them. 85
complying with space-related treaty
obligations, especially with its 2007 ASAT
84 86
“China and Russia jointly submitted the draft Treaty on Ibid, Article 1E.
87
PPWT to the UN Conference on Disarmament,” Ministry of Cesar Jaramillo, “In defense of the PPWT Treaty: Toward a
Foreign Affairs of the People’s Republic of China, 12 space weapons ban,” The Ploughshares Monitor 30: 4
February 2002, http://www.fmprc.gov.cn/eng/wjb/zzjg/jks/ (Winter 2009): 4.
88
jkxw/t408634.htm (accessed January 2010). See Government space arms control proposals, Secure
85
Proposed Treaty on the Prevention of the Placement of World Foundation, http://www.secureworldfoundation.org/
Weapons in Outer Space, the Threat or Use of Force against index.php?id=151&page=Governmental_Proposals (accessed
Outer Space Objects, Article 1C. June 2009).
test, China’s representatives disingenuously For years, the U.S. has acknowledged the
charge recent U.S. space activities “run diplomatic posturing relating to space
counter to the fundamental principle of weaponization, summarizing only the points
peaceful use of outer space” and contend the made, but not conceding them. Furthermore,
U.S. goal in outer space is to “defy the though it has tinkered with the technologies
obligations of international legal instruments and possibilities from time-to-time, the U.S.
and seek unilateral and absolute military and has yet to deploy any space-based weapon
strategic superiority.” 89 These specious claims system. The Obama Administration and its
do not reflect the domestic allies propose to negotiate a ban on
totality and reality …”peaceful space weapons, however defined, and even
of U.S. space purposes” in though there is uncertainty about exactly what
efforts, which span space should would be considered acceptable or workable.
a spectrum of civil, be construed to Interestingly, but not lost on the arms control
commercial, and and space policy community, while references
military activities
mean “non- to negotiating such a ban were first posted in
and missions. No aggressive;”… January 2009 on the White House website,
doubt the Chinese they were removed only a few months later. 91
actions and attendant diplomatic overtures are This more than likely transpired due to the
part of a strategic messaging campaign to realities of interagency process, which require
champion the internal, regional, and global measured and thoughtful policy making. Still,
interests of its government. Some could the Obama Administration has now endorsed
characterize the Chinese actions as a form of the PAROS-based discussions within the UN
“lawfare.” “The term lawfare describes the CD.
growing use of international law claims,
usually factually or legally meritless, as a tool Despite the difficulties, the U.S. should strive
of war. The goal is to gain a moral advantage to sort through the intractable issues presented
over your enemy in the court of world by space weapons and weaponization and help
opinion, and potentially a legal advantage in establish normative space community
national and international tribunals.” 90 behaviors relating to them. It has assumed
similar leadership roles for the entirety of the
Space Age, serving as a rule-setter and guide
89
Nancy Gallagher and John D. Steinbruner, Reconsidering
to achieve best space practices. It has
the Rules for Space Security, American Academy of Arts and leveraged its position as the preeminent space
Sciences, Reconsidering the Rules of Space Project,
Cambridge, Massachusetts, 2008, p. 42, citing the “Statement
91
by H.E. [His Excellency] Mr. Li Changhe – Chinese After Obama was sworn into office, the official White
Ambassador for Disarmament Affairs, Head of the Chinese House Web site was updated with a set of policy guidelines
Delegation for the Conference on Disarmament – at the including one on restoring U.S. leadership in space. Under the
Plenary Meeting of the CD,” 12 March 1998, heading “Ensure Freedom of Space,” the statement said the
www.nti.org/db/china/engdocs/ lich0398.htm (accessed June White House would seek a ban on weapons that “interfere
2009); Fu Zhigang, “A Chinese View of Star Wars,” The with military and commercial satellites.” See Turner Brinton,
Spokesman 72 (2000): 17–18; and “Statement by Ambassador “Obama’s Proposed Space Weapon Ban Draws Mixed
Hu Xiaodi for Disarmament Affairs of China at the Plenary of Response,” Space.com, 4 February 2009,
the Conference on Disarmament,” 7 June 2001, http://www.space.com/news/090204-obama-space-weapons-
http://www.nti.org/db/china/engdocs/cd060701.htm (accessed response.html (accessed January 2010). According to John
June 2009). Logsdon, former director of the George Washington
90
David B. Rivkin, Jr. and Lee A. Casey, “Lawfare,” Wall University Space Policy Institute, the text originated from an
Street Journal 23 February 2007, A11, Obama campaign white paper that was transferred verbatim to
http://online.wsj.com/article/SB117220137149816987.html the White House website without input from any of the
(accessed December 2009). government bodies that manage national policy..
power and used its bully pulpit to influence responsibility to determine the existence of
the global space-airing community. The U.S. any “threat to the peace” or acts of aggression.
assumed such a leadership role on space The Council can then recommend and lead an
debris and end-of-life operations back in the appropriate response; however, because
1980s when analysis showed an alarming Security Council actions are subject to
expansion in space debris arising from space international political negotiation, any
operations. 92 response would not likely be quick or a
significant deterrent to an aggressor. 94
Self-Defense and International In Nicaragua v. U.S. (1986), the ICJ offered

Peace and Security insight into the meaning of the Article 51 right
of self defense against armed attack. 95 In that
As noted above, “peaceful purposes” in space case, the Soviet Union and Cuba were accused
should be construed to mean “nonaggressive;” of assisting the Nicaraguan Sandinistas, who
hence, any use of a weapon in space or any were alleged to have committed acts of
attack on a space system would have to destruction and atrocities against Honduras
conform to the exceptions to the ban on the and Costa Rica. On the other side, the
use of force found in the UN Charter. 93 The Nicaraguan Contras were fighting the
first exception applies if the use of force is Sandinistas, and the U.S. was assisting in their
authorized by the Security Council in order to counter-revolution against the Soviet-
maintain international peace and security. As a sponsored Marxist regime. The U.S. was
second exception, Article 51 reaffirms that accused by the Sandinistas of unauthorized
nothing in the Charter should be construed to overflights, mining a harbor, and training
impair the inherent right of self defense rebels at an alleged CIA training camp.
against armed attack. This right of self-
defense has always been recognized, whether In its ruling, the ICJ held it is no longer
in municipal or international law, and existed acceptable to settle disputes with force, what
well before the advent of the UN Charter. had been customary law for millenniums.
Importantly, the court held the use of force
Thus, under Article 51, if a state is subject to could now only be justified in one of three
an armed attack, it may use force to repel the ways: (1) self-defense activities recognized as
attackers and stop the attack. Alternatively, if rights under Article 51 of the UN Charter; (2)
it is unclear whether an action constitutes such enforcement actions under Chapter 7 of the
an attack, Chapter VII of the UN Charter gives UN Charter; and (3) possibly through
the UN Security Council the authority and application of pre-UN anticipatory defense
rules of necessity and proportionality. 96 The
92
See Fact Sheet on Presidential Directive on National Space
94
Policy, 11 February 1988, which provides in pertinent part: Jia Huang, “New Challenges to the Traditional Principles of
“The directive further states that all space sectors will seek to the Law of War Presented by Information Operations in Outer
minimize the creation of space debris. Design and operations Space,” Journal of Politics and Law 2: 1 (2009): 40.
95
of space tests, experiments and systems will strive to As was its right, the U.S. did not agree to subject itself to
minimize or reduce accumulation of space debris consistent jurisdiction by the ICJ, which then proceeded and based its
with mission requirements and cost effectiveness.” finding of fact based on the presentations made by the
93
P.J. Blount, “Limits on Space Weapons: Incorporating the Sandinistas. The U.S. still disputes facts in the case, as well as
Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, the actual outcome, but it does endorse substantial portions of
Presented to the International Institute of Space Law the ruling and cites it in other cases.
96
Colloquium, International Astronautics Congress, Glasgow, The U.S. and a few other countries assert this third principle
UK, October 2008, p.3. of anticipatory defense from time to time; they are the rules
court held states have a right of collective self- defense. According to the ICJ, even though
defense only if they are under armed attack. Nicaragua may have been guilty of odious
Finally, in making an armed response in self- violations of international law, absent an
defense under Article 51, a state must also armed attack there was no right of collective
immediately report the fact of the armed self-defense that could be invoked by U.S. or
attack to the UN Security Council, and the its allies and friends. According to the court,
state must also promptly report its own actions the words “an armed attack occurs” speak of
in response. the actual commencement of physical violence
by armed forces. As we will see, the ICJ
According to the ICJ, the sole justification for ruling on this point is somewhat unrealistic if
U.S. actions in Nicaragua v. U.S. was applied to attacks on space systems.
collective self-defense under Article 51.
However, the court found none of the states
involved the purported collective self-defense Use of Force and Self-Defense
reported to the UN that they were subject to
armed attacks. In addition, nobody reportedly Must space systems be subject to some sort of
asked the U.S. to help, nor did the U.S. report physical violence before a response, armed or
an attack to the UN. Hence, the ICJ otherwise, can be initiated? Should non-
concluded, the right of collective self-defense kinetic types of attacks against space systems
could not be invoked. qualify as armed attacks? In short, the answers
are “No” and “Yes,” respectively.
The ICJ ruled self-defense rights could not be
invoked if the threshold of actual armed attack Threats are no longer presented just in the
was not reached. 97 The UN’ definition of terrestrial ground, sea, and air environment, or
aggression provided the court a foundation to just with classically recognized kinetic
establish the threshold for an armed attack. weapons. They are now manifested in space,
According to the Court, an “armed attack” is through new and exotic electromagnetic
not the same as an act of aggression. A mere means or information operations. Since the
threat of force is not an armed attack, nor venues and mechanisms for attack are
would all acts of aggression count. Hence, an evolving, so too must the vague definition of
opposing state may engage in an illegal use of “armed attack” at least with respect to space
force, yet that may not constitute an armed systems.
attack allowing for the use of force in self-
According to Jia Hueng:
from The Caroline Affair discussed later. In Nicaragua v. …the current international laws have
U.S., the ICJ held that the UN Charter did not supersede not given any definite definition of
custom, but exists alongside it. The U.S. position is that the term “use of force” and the
anticipatory self-defense is inherent in the right of self- information operations in outer space
defense. The ICJ, however, expressly held that it did not have brand-new features, which are
address the legality of anticipatory self-defense because the apparently different from those of
issue had not been raised. See Joshua E. Kastenberg, “The traditional armed conflicts
Use of Conventional International Law in Combating characterized by the mass of troops
Terrorism: A Maginot Line for Modern Civilization
and armaments and the invasion of
Employing the Principles of Anticipatory Self-Defense and
Preemption,” Air Force Law Review 55 (Spring 2004): 114. territory. So, we have to consider
97
The ICJ also held there is no such thing as a right of what actions by or against objects in
“collective” armed response to acts, which do not constitute space will be considered to be uses of
an “armed attack.” force. The international community
would probably not hesitate to regard
as a use of force the destruction of a systems free from interference; to do so a state

satellite by a missile or a laser. It must have the right to defend them against
would probably react similarly if it
could be proven that one nation took
attack. Limiting the right of self-defense in
over control of another nation’s response to attacks on these capabilities would
satellite by electronic means and be illogical, especially since they can be
caused it to fire its retro rockets and essential to the survival of a state. Such a
fall out of orbit. In such a case, the holding – that there is no such right – would
consequences will probably matter
more than the mechanism used. The
mean the rights of free passage of space
reaction of the international systems codified in the OST and found
community to lesser kinds of elsewhere within customary law and treaty
interference is hard to predict. For would be just empty words and mean little.
example, if one nation were able by “The maintenance of the right of self-defense
electronic means to suspend the
operations of another nation’s
is critical for protection of the space network,
satellite for a brief period, after which but recent attempts by international bodies to
it returned to service undamaged, it is limit this right signal an apparent trend toward
likely that the international the devolution of the inherent right of self-
community would consider such an defense.” 99
action as a breach of the launching
nation’s sovereign rights, but not as a
use of armed force. 98 Defining intentional and also damaging
electromagnetic and information operations as
To hold intentional dazzling, electromagnetic, armed attacks are consistent with a necessary
or information operation activities that target, expansive reading of Article 51’s right of self-
seek to damage, and actually disable, destroy, defense. Two divergent views have developed
degrade, or interfere with space systems as not concerning Article 51’s right of self-defense.
“armed attacks” would render the word The expansive view maintains the word
“attack” meaningless. International law must “inherent” in Article 51’s right of self-defense
preserve peace and security and, by extension, provides the customary international law
protect space systems from a wide variety of rights of self-defense remained intact and
threats and in venues not contemplated within Article 51 simply confirmed the right of self-
the UN when it was founded in 1945. In our defense in the particular situation of an armed
modern world, a state secures and defends its attack, but did not deny it in others. This is the
territory, political independence, and elements U.S. view – states retain their rights under
of national power (diplomatic, information, international law, especially self-defense
military, and economic) with space and space- principles of necessity and proportionality,
enabled information systems. They provide except those specifically surrendered under
the state a myriad of essential services – the UN Charter.
communications, warning, intelligence,
weather, PNT, and missile and space defense. The 2006 U.S. National Space Policy is in
A state must assure itself of the right to accord with the expansive interpretation. It
exercise jurisdiction and control over these frames the primary objective of the Policy as
preserving a relative national U.S. advantage,
98 99
Jia Huang, “New Challenges to the Traditional Principles of See Gregory E. Maggs, “The Campaign to Restrict the
the Law of War Presented by Information Operations in Outer Right to Respond to Terrorist Attacks in Self-Defense Under
Space,” Journal of Politics and Law 2: 1 (2009): 40, citing Article 51 of the UN Charter and What the U.S. Can Do
DOD General Counsel, An Assessment of International Legal About It,” Regent Journal of International Law 4:149 (2006):
Issues in Information Operations (May 1999), p. 27. 155-167.
rather than establishing a mutual benefit, by attacks on those activities. The jurisdiction
declaring that freedom of action in space is as and control element is quasi-territorial
important to the U.S. as air power and sea according to Bin Cheng, and this provides
power. The 2006 National Space Policy accord for a state asserting rights of self
asserts a broad array of U.S. rights and vital defense for space systems as a defense of
interests in space. It rejects any limitations on national sovereignty, territorial integrity, or
the fundamental right of the U.S. to operate in political independence. 101
and acquire data from space. The policy also
emphasizes that the U.S. is prepared to take Those that argue for narrow, and limiting
unilateral action to dissuade, deter, defeat, interpretation, only provoke resort to self-help
and, if necessary, deny space-related activities by states outside the bounds of the Charter. “A
hostile to its interests. legal system which merely prohibits the use of
force and does not make adequate provision
The alternate restrictive view asserts that the for the peaceful settlement of disputes invites
UN Charter allows only for a narrow right of failure.” 102 Though a bit counter-intuitive, the
self-defense – a right to respond only in the use of force in self-defense, in turn, enables
specific situation of a prior armed attack. attainment of the overarching objectives of
international peace and security.
[The restrictive] view has
considerable support and is consistent Some suggest the restrictive view of self-
with a number of resolutions passed
by the Security Council. Proponents
defense is more analytically sound and widely
of this view see Article 51 as a accepted than the other view. They argue an
partner to Article 2(3), which requires expansive reading of Article 51 conflicts with
peaceful settlement of disputes, and the letter and spirit of the UN Charter.
Article 2(4), which outlaws the use of Scholars arguing for a restrictive interpretation
force. They consider “the permission
in Article 51 [to be] exceptional in
fail to adequately address the practicalities of
the context of the UN Charter and modern warfare; a narrow interpretation and
exclusive of any customary right of definition of attacks and permissible self-
self-defense.” This restrictive defense is simply unworkable as there does
approach addresses the fear that not appear to be a happy medium, which
expansive interpretations of Article
51 create a loophole through various
actually preserves and protects the spacefaring
countries could rationalize military rights of nations. The covert nature of modern
adventurism. 100 forms of diplomatic, information, military,
and economic conflict and the potential for
Aggression not formally amounting to “armed crippling destruction and damage continues to
attack” can also be just as threatening to the evolve with a potential for catastrophic
sovereignty and the existence of a state as full
military hostilities. Spacefaring states defend 101
“…since territorial sovereignty has been banned from outer
their political independence within the space and, with it, territorial jurisdiction, the overriding
confines of the UN Charter. They exercise jurisdiction in outer space is quasi-territorial jurisdiction. Bin
Cheng, “The Commercial Development of Space: The Need
jurisdiction and control over their space for New Treaties,” Journal of Space Law 19: 1 (1997).
systems, and by preventing and defeating 102
Norman Menachem Feder, “Reading the UN Charter
Connotatively: Toward a New Definition of Armed Attack,”
NYU Journal of International Law & Policy 395 (1987),
100
Norman Menachem Feder, “Reading the UN Charter citing Waldcock, “The Regulation of the Use of Force by
Connotatively: Toward a New Definition of Armed Attack,” Individual States in International Law,” Recueil Des Cours 81
NYU Journal of International Law & Policy 395 (1987): 404. (1952): 455-456.
consequences. 103 Kinetic, electromagnetic, and characterized as an “armed attack,”

cyber attacks intentionally targeting, then a conventional response may not
be warranted. A conventional
damaging, and interfering with satellites and response, in this case, may in fact be
their supporting terrestrial systems would considered the “armed attack” under
appear logically and realistically to satisfy Article 51. A response alike would
conceptions of armed attack that would not constitute an “armed attack,” but
warrant and allow a proportionate response (as there are still at least three obstacles
for the retaliation side as follows.
provided in the LOAC, described in more Firstly, it is difficult to identify the
detail below) in accord with the UN Charter attacker. Information attack in outer
and customary law of self-defense exceptions. space has the characteristics of long-
Such attacks should therefore trigger a right of range and anonymity and the attacker
self-defense. can conduct information attack
against space assets in or through
foreign countries. Information can
Concluding there is a right of self-defense for flow across international borders
attacks on space systems requires an analysis while a nation’s military, judicial, and
to assess whether an actual attack has taken security agencies cannot carry out
place. As will be discussed later in this paper’s investigations in a foreign country at
will and this kind of investigation
discussion of the ICJ Case Concerning Oil may be considered as spy so it cannot
Platforms, there are considerable challenges to gain cooperation from related
U.S. abilities to identify, classify, characterize, countries. Secondly, it is difficult to
and attribute space threats and events. Within produce evidence. Space assets are in
the hostile physical environment, varied an abominable environment
characterized by intensive radiation,
energetic and kinetic events affecting space extreme temperature, and micro-
systems occur on a recurring basis; moreover, gravity. Occasionally, they may be
satellite electronic, sensor, or other glitches stricken by small meteors or space
could exhibit attributes of an attack until debris, which runs at high speed. So
analysis has resolved the issue. Ultimately, they may be damaged by the natural
cause. A space asset usually consists
even if one concludes there has been an attack, of many complex systems and there
attributing the source of the event to a are frequent malfunctions and
particular state or non-state actor could prove program errors. Because of these
to be extremely difficult. factors, the offended state cannot
produce sufficient evidence that it has
suffered from intentional attack.
The challenge to resolving information attacks Finally, even though the attacker can
would be similar. According to Jia Huang: be identified and proven to be
supported by a foreign government,
…if an aggressor uses information this foreign country may lack the
techniques to conduct the operation space information infrastructure that
and inflicts little or no physical would make it vulnerable to a
destruction, whether this kind of response alike. 104
attack can be regarded as “armed
attack” is disputable. If an
information attack cannot be
103
The increasingly covert nature of modern form of
aggression and their greater potential for devastation have
104
made both scholars and states dissatisfied with the limited Jia Huang, “New Challenges to the Traditional Principles
legal availability of the justification of self-defense. Ibid., p. of the Law of War Presented by Information Operations in
418. Outer Space,” Journal of Politics and Law 2: 1 (2009).
Anticipatory Self-defense shortfalls exacerbate the time lag and analysis

for Space Systems challenges.
Some states maintain that within the right of Assuming they have been identified as a
self-defense is a right to prevent an armed lawful target, terrestrial components of space
attack from occurring by using anticipatory and ASAT systems can be struck within days,
self-defense. 105 The U.S. is one such state. The hours, or minutes depending upon the
Caroline Affair dispute with the United proximity of military forces to the target. The
Kingdom in 1837 gave rise to a formal U.S. Strategic Command and Air Force Space
interpretation in international law setting out Command have toyed with the idea of a
the elements of lawful anticipatory self- conventional strike missile from time to time,
defense. The case stands for the proposition though that system is subject to a number of
that the use of force in anticipatory defense limitations, and developing workable rules of
may be justified and employed only in matters engagement for its employment should prove
in which the “necessity of that self-defense is difficult. As to potential space-based targets,
instant, overwhelming, and leaving no choice systems could be deployed to engage such
of means, and no moment for deliberation.” targets, but the delay could be hours, days,
The use of such force must also be weeks, months, or even more; the timing for
proportional. The criterion of immediacy and strikes with kinetic or particle beams, or other
necessity must be based upon the very fact systems would be dependent on the
that there is no other course available to prospective target’s orbit, intercept physics,
prevent the threatened attack from being and readiness of the sensor, shooter, and
executed. By nature, this excludes execution command and control systems employed.
of pre-planned attacks.
The case for using force for anticipatory
Can an anticipatory defense be presented in defense of space systems can be compared to
response to an imminent threat to U.S. space performing anticipatory defense in the event
systems? Physics and engineering realities of a potential nuclear strike. The signs of
make the immediacy criterion rather difficult preparedness for employing nuclear weapons
to achieve. There will always be time lag and would have to be so overwhelming that only a
latency associated with detecting and definite intention to use them would logically
analyzing an event, ascertaining the source explain the actions being undertaken. Since
and potential for damage, determining that a the risks of inaction could be catastrophic,
party intended to cause the damage, and then they would demand immediate action.
mobilizing weapons in response to perform However, Louis-Philippe Rouillard suggests
space or terrestrial-based combat. the fueling of one missile or even of a region’s
Complicating these problems, U.S. SSA assets missiles might not be enough to justify an
are underfunded and overtaxed though they attack based on anticipatory self-defense,
have been described repeatedly by U.S. since some might think no country would use
Department of Defense (DOD) and U.S. Air a limited amount of nuclear weapons on a first
Force space officials as a top priority; the strike as this would leave it open to utter
destruction upon a retaliatory strike. 106 Would
105
Some argue the drafters of the UN Charter intended to
106
restrict the right of self-defense under the Charter and See Louis-Philippe Rouillard, “The Caroline Case:
customary international law and state practice involving Anticipatory Self-Defense in Contemporary International
anticipatory defense measures was not accepted. Law,” Miskolc Journal of International Law 1: 2 (2004): 117.
an analogous circumstance apply to a potential prisoners of war. Its fundamental targeting

attack on a space system? Probably not. The rules are very relevant to concepts of space
loss or potential loss of a single satellite or warfare. The overarching LOAC
redundant ground node of a space system considerations are: necessity, distinction or
should not present a serious enough threat that discrimination, proportionality, humanity, and
a state should not first attempt to resolve the chivalry.
developing dispute through diplomatic,
economic, or global engagement means. Law Space warfare possibilities present policy and
on the use of force only “allows States to law challenges, but rules for them can be
respond with force when a peaceful settlement derived and applied through analogy from
of the dispute cannot be negotiated.” 107 terrestrial venues. As one might expect, the
traditions, principles, and rules that might
apply in space arenas were initially developed
Law of Armed Conflict to apply in traditional terrestrial venues – land,
sea, and air. Important components of space
“States may use force to defend themselves or systems are terrestrially based; LOAC
to defend others, however, there are accepted targeting considerations for targeting and also
limitations to this exception.” 108 Before using defending terrestrial components are better
force, one must evaluate not only space law, understood and established. Even so, not all
but also assess use of force and LOAC rules are directly translatable to the space
humanitarian law considerations. The LOAC environment. Some even believe LOAC
is a body of international law that sets principles are inapplicable to unmanned
boundaries on the use of force during armed space-based components of satellite systems,
conflicts through application of fundamental but that is, however, a rather limited
principles or rules. 109 LOAC principles and viewpoint. In the end, each LOAC
rules combine elements of treaty and considerations must be considered before
customary international and municipal law. prosecuting military conflict in space or
The LOAC sets limits on when and to what against terrestrially-based space system
degree force may be used, targeting, and support, command and control, and user
treatment of noncombatants, civilians, and components.
107
P.J. Blount, “Limits on Space Weapons: Incorporating the The first LOAC principle to consider,
Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, “military necessity,” provides “a person or
Presented to the International Institute of Space Law object should not be targeted unless doing so
Colloquium, International Astronautics Congress, Glasgow,
UK, October 2008, p. 4.
gives an attacker some real advantage.” 110
108
Ibid. Military necessity requires combat forces
109
DOD policy is to comply with the Law of War “in the engage in only those acts necessary to
conduct of military operations and related activities in armed
conflict, however such conflicts are characterized.” See DOD
110
Law of War Program, DOD Directive 5100.77, 9 December Adam E. Frey, “Defense of U.S. Space Assets: A Legal
1998. Chairman, Joint Chief of Staff Instruction (CJCSI) Perspective,” Air & Space Power Journal (Winter 2008),
provides that the U.S. “will apply law of war principles during http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/
all operations that are categorized as Military Operations win08/frey.html (accessed June 2009). According to Frey,
Other Than War.” See Implementation of the DOD Law of “The principle has four elements: the user of force must be
War Program, CJCSI 5810.01, 27 August 1999. Under the capable of regulating it; force must be necessary to achieve,
U.S. military’s Standing Rules of Engagement (SROE), “U.S. as quickly as possible, the enemy’s partial or complete
forces will comply with the Law of War during military submission; it must be no greater in effect on the enemy’s
operations involving armed conflict, no matter how the personnel or property than needed to achieve victor; and it
conflict may be characterized under international law.” must not otherwise be illegal.”
accomplish a legitimate military objective. Related to necessity, the central idea of

“The U.S. formally acknowledged this distinction is one may only engage valid
principle when it signed the 1907 Hague military targets. Military objectives must be
Convention, which prohibits any action to separated and distinguished from protected
destroy or seize the enemy’s property, unless civilian objects to the maximum extent
such destruction or seizure is imperatively possible. An indiscriminate attack is one that
demanded by the necessities of war. The strikes military objectives and civilians or
Nuremberg trials also explained that civilian objects without an attempt to
destruction as an end-in-itself is a violation of distinguish between military and nonmilitary
international law. There must be some targets. Additional Protocol 1 to the Geneva
reasonable connection between the destruction Conventions limits targets “strictly to …those
of property and the overcoming of the enemy objects which by their nature, location,
forces.” 111 purpose, or use make an effective contribution
to military action and whose total or partial
Military necessity only allows that degree of destruction, capture or neutralization, in the
force required to defeat an enemy. In addition, circumstances ruling at the time, offers a
attacks must be limited to military objectives definite military advantage.” 113 Civilians and
whose “nature, purpose, or use makes an civilian property are prohibited targets. 114
effective contribution to military action and
whose total or partial destruction, capture, or Distinction also requires defenders to separate
neutralization at the time offers a definite military objects from civilian objects to the
military advantage.” 112 In applying military maximum extent feasible. 115 If system is to be
necessity to targeting, the rule generally civilian in nature, it needs to be separated
allows targeting those facilities, equipment, from military systems. This is difficult and
and forces which, if destroyed, would lead as complex to achieve with some spaceborne
quickly as possible to the enemy’s partial or systems – communications, PNT, weather, or
complete submission. classically constituted imagery systems have
dual civilian and military applications. For
Applying the rule of necessity in engaging example, the global PNT resource, GPS, is
space systems, warfighters must take into operated by the U.S. Air Force, and it
account the nexus between the adversaries’ produces vital effects for the civil and
war effort and the space system. Importantly, commercial communities. Important weather
targeting on-orbit spaceborne assets may be satellites relied on by the U.S. military and its
unnecessary if the same military necessary allies, but also global civil and commercial
result can be obtained by targeting communities, are operated by the U.S.
terrestrially-based components, or jamming up Department of Commerce; the U.S. Air Force
and down links. provides a back-up command and control
center for the Defense Meteorological Satellite
111
See “Convention (IV) Respecting the Laws and Customs of Program (DMSP). The U.S. obtains large
War on Land and Its Annex: Regulations Concerning the portions of its satellite communications
Laws and Customs of War on Land, the Hague, 18 October
1907,” Article 23(g), International Committee of the Red
Cross (ICRC) International Humanitarian Law Database,
113
http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e See Ibid., Article 52(2).
114
636d/1d1726425f6955aec125641e0038bfd6 (accessed June See Ibid., Articles 51-54.
115
2009). In a space context, it would be inappropriate to locate a
112
See Protocol Additional to the Geneva Conventions, 12 civil space habitat for spacecraft personnel next to an
October 1949, Articles 51-54. adjoining space weapon or military system.
capability by leasing international commercial Given the prevalent global understanding of

transponders, as do other militaries, civil, and the problems of space debris and their physics,
commercial users. Similarly, significant a spacefaring state cannot reasonably contend
portions of remote sensing and supporting it could not foresee the damage that would
launch capabilities are produced by occur as a consequence of initiating a kinetic
commercial providers, consistent with U.S. or other destructive ASAT event. If so
remote sensing and commercial space launch employed, it could be reasonable to conclude
policies that encourage such relationships. the attacking state executed an indiscriminate
Attacking such objects may hinder an enemy, attack, one where the means of attack
but civilians would suffer tremendously as an “employs a method or means of combat the
outgrowth of this mixed civil and military use effects of which cannot be limited as
of space systems. required.” 118 For this reason, employing
ASAT weapons would appear to be unlawful
Under Additional Protocol 1 to the Geneva if they create space debris that damages
Conventions, limits are imposed on attacks on civilian space systems, regardless of whether
civilian objects 116 and attacks that cause or not the damage occurs during or after the
“widespread, long-term, and severe damage” time of conflict.
to the environment. 117 Consequently, a
weapon must be targeted with discrimination. Would deploying or exploding space mines be
What then should be done to address the lawful? Probably not, but this assumes the
tricky issue of space debris? The creation of mine is designed to explode, fragment, and
space debris must be expected and considered riddle space with debris. 119 What if the mine is
if kinetic or otherwise destructive weapons are kept on orbit for an extended period? In such
about to be employed. Substantial debris fields event, P.J. Blount opines we should look by
should be reasonably foreseen to cause analogy to the restrictions placed on
damage to other civilian space assets. Since unsecured naval mines: 120
kinetic or otherwise destructive engagements
could break the threshold of “widespread, According to the Hague Convention
long-term, and severe damage” to the VIII, these mines must be disabled
within an hour of release due to the
environment, the focus should be on assessing way in which they might move and
the number and size of pieces of expected destroy nonmilitary objectives. While
space debris, their orbits, the length of time on the ban is not directly translatable to
orbit, the ability to track the debris, and space due to physics, the principle
potential damage. The 2007 Chinese ASAT behind this ban is. So placing a
weapon in space that engages targets
left thousands of pieces of space debris on at random would also be unlawful.
orbit, at altitudes where they will remain on The principle could be extended by
orbit for hundreds to thousands of years, an analogy to torpedoes, which must
presenting long-term threats to imagery, be disabled if they miss their targets.
environmental, and communication systems.
118
Ibid. and Relating to the Protection of Victims of
International Armed Conflicts (Protocol 1), 8 June 1977,
Article 51(4).
116 119
See Protocol Additional to the Geneva Conventions, It might be possible to develop and field space mines
Article 52. designed to minimize space debris or other long-term
117
See Ibid., Article 55. Protocol Additional restrictions’ problems.
120
apply to land, sea, and air combat and these limitations are “These would be contact mines that are not secured by a
echoed elsewhere in other treaties and in customary mooring or anchor and have the ability to be swept away in a
international law. current.”
A weapon in space that misses its This requires a balancing test between the
target and continues to poses a threat substantial, actual, and direct military
due to its capabilities might also be
illegal (e.g., a warhead being used as
advantage anticipated by attacking a
an ASAT that misses its mark). 121 legitimate military target and the expected
incidental and unfortunate civilian injury or
Another distinction relates to a potential for damage. Under this test, excessive incidental
causing damage or injury to humans in space. losses are prohibited. This principle
Civilians may not be made the object of a encourages combat forces to minimize
direct attack; however, the LOAC recognizes collateral damage – the incidental, unintended
a military target need not be spared because its destruction that occurs as a result of a lawful
destruction may cause collateral damage that attack against a legitimate military target, and
results in unintended death or injury to leverages the rules relating to necessity and
civilians or damage to their property. discrimination. This principle is also reflected
Commanders and their planners must take into in Additional Protocol 1, which prohibits “an
consideration the extent of unintended indirect attack, which may be expected to cause
civilian collateral destruction and probable incidental loss of civilian life, injury to
casualties that will result from a direct attack civilians, damage to civilian objects, or a
on a military objective and, to an extent combination thereof, which would be
consistent with military necessity, seek to excessive in relation to the concrete and direct
avoid or minimize civilian casualties and military advantage anticipated.” 123
destruction. Anticipated civilian losses must
be proportionate to the military advantages An action causing excessive or catastrophic
sought. In the end, it could be difficult to damage to civilians or property should be
justify some losses without compelling illegal. Since Additional Protocol 1’s test is
“survival of the State” rationales. It would subjective, commanders could reasonably
appear to be illegal to conduct activities that disagree on whether attacking these objects
might cause damage to the International Space truly “offers a definite military advantage.” 124
Station, or other manned civil space systems, The principle of proportionality offers some
or injury to their space personnel, whether on guidance with regard to using force against
orbit, or during lift and return operations. space systems: since collateral damage to
civilians is considered a natural consequence
Proportionality prohibits the use of any kind of combat, the proportionality test should be
or degree of force exceeding that needed to applied to determine if an attack on a dual-use
accomplish a military objective. An attacker object warrants the consequences to the
must therefore balance the expected damage
against the military advantage to be gained. 122
121
P.J. Blount, “Limits on Space Weapons: Incorporating the of determining whether a target is a permissible one. The U.S.
Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, has declined to sign certain treaties, or portions thereof, that
Presented to the International Institute of Space Law prohibit certain targets without any balancing test.”
123
Colloquium, International Astronautics Congress, Glasgow, Protocol Additional to the Geneva Conventions and
UK, October 2008. Kinetic ASATs are typically launched on Relating to the Protection of Victims of International Armed
sub-orbital trajectories so if they miss they come right back Conflicts (Protocol 1), Article 51(5)(b), ICRC International
down, like an ICBM warhead. Co-orbital ASATs generally Humanitarian Law Database, http://www.icrc.org/ih1.nsf/
require larger boosters to achieve their mission objectives. FULL/470 (accessed June 2009).
122 124
Robert A. Ramey, “Armed Conflict on the Final Frontier: J. Ricou Heaton, “Civilians at War: Reexamining the
The Law of War in Space,” Air Force Law Review 48 (2000): Status of Civilians Accompanying the Armed Forces,” Air
79-82. “The proportionality test is the U.S.’ preferred method Force Law Review 57 (2005): 182-183.
innocent. 125 Hence, attacking and destroying on first blush, be completely foreclosed.
vital PNT systems, such as GPS, may be held However, according to Blount:
illegal since global society at large relies upon
the use of these systems. 126 The same …the International Court of Justice’s
conclusion may apply to attacks on (ICJ) Advisory Opinion on Legality of
the Threat or Use of Nuclear
environmental monitoring systems, especially Weapons might have created an
if used to protect civilians from weather, exception to this rule. The ICJ ruled
natural disaster or other environmental threats. that in general the use of nuclear
If necessary to engage these systems, then it weapons would be “contrary to the
may be more acceptable, and lawful, if the rules of international law applicable
in armed conflict, and in particular
damaging effects are reversible or temporary the principles and rules of
during specific periods of military activity. humanitarian law.” However, the
court states that a State may use a
What of nuclear weapons? The OST bans the nuclear weapon when the “very
stationing of nuclear weapons and weapons of survival of a State would be at stake.”
Since the court treats this as a
mass destruction in space. Also, “the Nuclear moment of necessity in which both
Test Ban treaty prohibits states from causing customary and treaty law can be
nuclear explosions in outer space.” 127 Such suspended, it is feasible that the Outer
weapons present significant Space Treaty and the Limited Test
distinction/discrimination challenges. As Ban Treaty could also be suspended
and that a State may, during “an
noted, the space and defense communities extreme circumstance of self-
learned of these issues during the 1960s defense” use a nuclear weapon in
Starfish Prime and other upper atmospheric space. 128
nuclear weapons experiments. So the use of
nuclear weapons in space, aside from transit Under what circumstances employment of a
of a nuclear warhead that most concede can be nuclear weapon in space could be legally
legally executed in certain conflicts, should, envisioned? Perhaps to defeat on-orbit
weapons of mass destruction or nuclear
125
The expression “definite military advantage” is derived weapon system posing a serious violation of
from the Hague Rules of Air Warfare. The idea conveyed is the Outer Space and Limited Test Ban treaties
that of “a concrete and perceptible military advantage rather or an otherwise serious provocation. Such use
than a hypothetical and speculative one. The advantage must
be military and not purely political, and involve an evaluation
would require balancing the risks to the space
of the long-term military benefits of any action contemplated. environment and other space systems, and
See Yoram Dinstein, The Conduct of Hostilities under the considering peace and security options
Law of International Armed Conflict (Cambridge University
Press, 2004), pp. 83-86.
associated with failure against possibilities of
126
The U.S. GPS system is a free global utility, but until defeating the threat. Could using the same
recently the U.S. reserved the right to control and degrade its argument allow use of nuclear weapons
signal. Current U.S. policy is to distribute the system’s PNT
signal without any control or degradation. In September 2007,
against pure space assets presenting
the U.S. announced its decision to procure the future communications, PNT, warning and other
generation of GPS satellites, GPS III, without the selective capabilities that enable 21st Century militaries
availability (signal degradation) technical feature. “DOD
Permanently Discontinues Procurement of Global Positioning
operations by adversaries? Probably not, but
System Selective Availability,” DOD News Release 1126-07,
128
18 September 2007. Russia, China, Europe, Japan, and India P.J. Blount, “Limits on Space Weapons: Incorporating the
have deployed, or plan to deploy, their own spaceborne PNT Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5,
systems. Presented to the International Institute of Space Law
127
Treaty Banning Nuclear Weapon Tests in the Atmosphere, Colloquium, International Astronautics Congress, Glasgow,
in Outer Space and Under Water, 10 October 1963, Article 1. UK, October 2008, p. 8.
approving that argument would create an communications systems, even in self-

exception that would negate arms-control and defense. Articles 8 and 9 of the Hague
peacekeeping aspects and limitations imposed Convention V, which was concluded in 1907,
by the Outer Space and Limited Test Ban decades before satellite communications
treaties, the UN Charter, and other bilateral systems were even envisioned, provide a
agreements. neutral state is not required to restrict a
belligerent’s use of “telegraph or telephone
A state must do “everything feasible to verify cables or of wireless telegraph apparatus
that the objectives to be attacked are military belonging to it or to companies or private
objectives.” 129 However, operations in this individuals” as long as these facilities are
context, requires use of the panoply of space provided impartially to both belligerents. It
capabilities – satellite imagery, satellite PNT appears these Articles would apply to modern
systems, satellite communication systems, and day satellite communications, though some
even meteorological data. Denying an think this remains an open question.
adversary access to space systems may relieve
him of some portion of this important Another issue that must be addressed is how
obligation to mitigate civilian casualties by to treat neutrality rights in time of conflict.
employing such techniques and Since space law accords states the
technologies. 130 Furthermore, a weapon that responsibility over their private entities
could be used in a nondiscriminatory manner involved in space operations, an argument can
or in such a way it would cause unnecessary be made to hold a neutral state responsible for
suffering is only banned if it can also be used the actions of its private entities. According to
in a discriminatory manner and cause limited Elizabeth Waldrop:
suffering. “In such a case it is the illicit use of
the weapon that is outlawed and not the …when a State issues a license
weapon itself.” 131 authorizing a private entity to provide
certain services, there can be little
argument that the State should be
War must be waged in accordance with widely held responsible for subsequent
accepted formalities, and avoid unlawful conduct of the private entity.
treachery. These principles impose an Accordingly, if a neutral State
obligation to reduce noncombatant civilian permits its space systems to be used
by a belligerent military, the opposing
casualties and damage, but this can be difficult belligerent would have the right to
to achieve as military and civilian space demand that the neutral State stop
systems become more and more intertwined. doing so. If the neutral State is
The concept of “neutrality” may also limit unwilling or unable to prevent such
military space conflict activities. Belligerents use by one belligerent, it would seem
reasonable to authorize the other
should have no right to attack neutral satellite belligerent to prevent the offending
use. In the context of space systems
129
Protocol Additional to the Geneva Conventions, Article used in time of conflict, before
57(2)(a)(i). resorting to force a belligerent could
130
Of course, denying an adversary access to space assets (or should) demand a neutral nation
might save lives if the adversary is using them to target not to provide satellite imagery,
innocent civilians. navigation services, or weather
131
P.J. Blount, “Limits on Space Weapons: Incorporating the information to its adversary. 132
Presented to the International Institute of Space Law
132
Colloquium, International Astronautics Congress, Glasgow, Elizabeth S. Waldrop, “Integration of military and civilian
UK, October 2008, p. 6. space assets: legal and national security implications”, Air
Law on the Use of Force exercise self-defense under international law.

In disposing of the U.S. position, the Court
Given the realities of operating in space, its expressed interest and concern with where the
global nature, and the fact threats are vessels were attacked, especially since they
manifested nearly always outside the territory were not located in U.S. territorial waters. The
of a state, self-defense measures invariably ICJ concluded the U.S. could not assert a right
require military activities conducted outside of self-defense in defense of third parties
the confines of that state. Some suggest the unless those parties requested “collective self
ICJ objected to such extra-territorial self- defense,” and mere ownership of a vessel was
defense measures in its 6 November 2003 not sufficient to assert the right. The ICJ
ruling in the Case Concerning Oil Platforms placed the burden on the U.S. to show the
(Islamic Republic of Iran v. United States of attacks on its vessels were of such a nature as
America), a dispute involved issues arising out to be qualified as armed attacks within the
of the Tanker War of 1984-1988 and meaning of that expression in Article 51 of the
analogous to space conflict. UN Charter, and as understood in customary
law on the use of force. 134 The ICJ concluded
The term Tanker War was first the right of self-defense can be asserted only if
applied to a series of naval battles and it can detect, and attribute, and conclusively
incidents in the Persian Gulf from
1984-1988 that was part of the larger
prove, an attack by the hostile actor.135
Iran-Iraq War that spanned most of
the decade. For two years, the U.S. Confirming the applicability of the
was involved in the Tanker War to international law criteria of necessity and
counter the hostile actions of military proportionality in relation to the use of force
and paramilitary forces of the Islamic
Republic of Iran. These forces
in self-defense, the ICJ ruled it was not
engaged in a broad pattern of low- satisfied the U.S. attacks were necessary to
level, yet unlawful, uses of force, respond to the shipping incidents in the Gulf
targeting not only U.S. forces, but and constituted a proportionate use of force in
also U.S.-owned and flagged self-defense. Some suggest this formulation
commercial shipping, foreign
commercial activities, and the
could have strict and adverse implications for
strategically important Persian Gulf future claims of a right of anticipatory or pre-
waterway itself in the form of mine- emptive self-defense insofar as it holds that an
laying in international waters. 133 armed attack is a prerequisite to the right of
self-defense under Article 51 of the UN
In arriving at its ruling, the ICJ addressed Charter and under customary international
issues associated with the “inherent right of law. 136 Darren Huskisson has written a critique
self-defense.” It held the facts presented with of the ICJ Oil Platforms decision and its
regard to missile attacks on U.S.-flagged potential importance. 137 The case presents
tankers and mining incidents and attacks on
U.S. warships in the Gulf were not sufficient
to support an invocation of an inherent right to 134
Case Concerning Oil Platforms (Islamic Republic of Iran
v. United States of America).
135
Ibid.
136
Force Law Review, Spring 2004, 157-231, citing DOD The Court was not faced with an issue of anticipatory or
General Counsel, An Assessment of International Legal Issues pre-emptive self-defense since the alleged attacks against U.S.
in Information Operations (May 1999). flagged and owned shipping had already occurred.
133 137
Darren Huskisson, “Protecting the Space Network and the See Darren Huskisson, “Protecting the Space Network and
Future of Self-Defense,” Astropolitics 5 (2007): 123-143. the Future of Self-Defense,” Astropolitics 5 (2007): 123-143.
substantial implications for space conflict “armed attack.” At best, the ICJ ruling can be
issues: viewed as a political verdict,139 perhaps
mischaracterizing the evidence on a shooting
A Space War would have factual war that took place nearly two decades earlier
similarities to the 1987-1988 phase of during the Reagan Administration, then
the Tanker War. One could envision a
regional conflict, even one in which
shaping its decision to telegraph displeasure
the U.S. is not directly involved, that with the George W. Bush Administration’s
would have spill-over effects on the campaign to develop and employ a coalition to
U.S. space networks as the remove the murderous Sadaam Hussein
belligerents attempted to deny the regime from power in Iraq, and battle Al
other the use of space services, just as
Iran and Iraq tried to deny each other
Qaeda proxies in Afghanistan and globally.
the commercial use of the Persian Despite these faults, the Court’s reasoning
Gulf during the Tanker War. The cannot be dismissed as wholly in error. Yet
U.S. would likely use force in careful analysis shows the ruling does not
response to any severe instances of impose new or unreasonable burdens on those,
harmful interference, such as attacks
against U.S.-owned and registered
such as the U.S. and its allies, who seek to
space systems and foreign defend their space systems.
commercial systems and even
potentially in response to the The Court was clearly troubled the U.S. had
emplacement of space mines. Due to reflagged U.S. and non-U.S. owned vessels
limited space situational awareness
(SSA), the U.S. could expect a space
and inserted itself into the controversy and
adversary to conduct its operations shooting war between Iran and Iraq and
under an even stealthier cloak of between other states in the region of the
deniability than existed in the Tanker Persian Gulf/Gulf of Arabia. The ICJ looked
War. for and apparently required a stronger nexus
The specter of a Space War raises
many questions… May the U.S.
and compelling interest for self-defense
defend portions of the space network between the Tankers being attacked and their
located outside the U.S. territory? relationship with the U.S. The ICJ was
Would it be permissible to use force looking to see if sovereigns having significant
to defend non-U.S. territory? Would local territorial interests in protecting the
it be permissible to use force to
defend non-U.S. registered space
tankers invoked collective self-defense
assets? What is the standard of proof obligations with the U.S. That had not
for establishing an “armed attack” on happened, nor was there any general
the space network, thus triggering the invocation by the parties of the right of
right of self-defense? Must the U.S. collective defense.
ascertain the intent of the attacker
before initiating an armed response?
Is the gravity of the attack on the Given the foundational defects in the Oil
space network relevant to the Platforms ruling, Huskisson’s analogy
triggering of the right of self- between the tankers and space systems being
defense? 138 attacked is incomplete. Contrary to the
situation involving tankers in Oil Platforms,
No doubt, the ICJ was unwilling at any level
to conclude the myriad of actions taken by the 139
The Court found no evidence of intent by Iran to
Iranians arose to any level constituting an specifically target U.S. ships with either a missile strike or
mining operations, even if they were fired; thus the court
concluded no “armed attack” occurred which could give rise
138
Ibid. to self-defense measures.
U.S. space systems present clear and specified hostile actor. With regard to LOAC
compelling capabilities vital to insuring the issues, a military action must be necessary and
extensive and instant U.S. global diplomatic, distinguish between combatants and
informational, military, and economic noncombatants. Huskisson dismisses these
interests. This is in accord with the OST, evidentiary requirements of ascertaining the
which provides spacefaring powers retain hostile actor as unreasonably difficult to
jurisdiction and control over their space achieve given the current state of SSA
objects and operations even if no signatory capabilities; he correctly spots SSA challenges
shall assert rights of sovereignty to portions of as its capabilities are best equipped to provide
outer space. A state must be able to defend a forensic understanding of recent events
such jurisdiction and control rights. rather than real-time feedback on on-going
events. Huskisson wrongly infers the
By his complaint, Huskisson presents the very evidentiary requirement should be partly
solution necessary to perfect the right of self- ignored or accommodated because it could be
defense for a U.S. owned space asset, or overly difficult to satisfy.
defending a foreign registered system. U.S.-
owned space systems need only be registered Current SSA tools and overall capabilities
by the U.S. If the U.S. proposes to invoke self- need to be improved given the ICJ’s opinion
defense rights for a foreign registered space in the Oil Platforms. This is a correct result,
system that must involve and be performed in and encourages appropriate planning and
accord with an invocation of collective resource development. It would be far more
defense rights by the registering State. destabilizing to encourage commanders or
Although the current version of the national leaders to authorize or engage in
Registration Convention does not direct re- military actions based on “hunches” that an
registration of space objects launched into attack has or is about to happen, and
space upon transfers of ownership, control, “hunches” as to who made the attack.
and operation (this is a subject for a future
modification of the Convention or a treaty Huskisson also complains about the Court’s
affecting the use of force and LOAC). 140 requirement that a state ascertain the intent of
Pending such changes, perfecting self-defense the attacker before initiating an armed
rights for transferred systems could be response. Again, Huskisson misses the Court’s
achieved by invocating the rights with an important point. Not all events causing
Article 51 submission to the UN Security damage to space systems are the result of an
Council. attack. To find otherwise would ignore a half
century of space physics, engineering, and
Huskisson worries the Court’s opinion operational experiences. This would risk
establishes a burdensome requirement to peace and security over accidents or other
identify the hostile actor attacking a U.S. non-hostile events. Space systems are
space system. He rightly concedes an continually battered with a variety of
important point of international law relating to environmental events – space debris, electrical
the use of force that a nation asserting a right charging, cosmic rays and energetic particles,
of self-defense must attribute an attack to a and others. Assuming an event can be traced
to some state or actor, a strong factual
140 determination must nonetheless be made as to
Convention on the Registration of Objects Launched into
Outer Space, 15 September 1979, also known as the whether the interference or damage occurred
Registration Convention, at Article II. inappropriately or by accident. For example,
jamming incidents affecting space systems caused to another space object in outer space,
occur in many venues, most inadvertent, some liability is based on fault. On the other hand, if
not. An assessment and inquiries must be damage is caused by a space object on earth or
made to determine the true context of the to an aircraft in flight, liability is absolute.
event to satisfy LOAC requirements of
necessity, distinction, and proportionality. Notably, there can be more than one launching
State – a launching state is any state that
Finally, Huskisson complains about whether launches an object, procures the launch of an
the gravity of an attack on a space system is object, or from whose territory or facility an
relevant to the triggering of the right of self- object is launched. If there is more than one
defense. Huskisson again missed the ICJ’s launching State, joint and several liability
point. The ICJ ruling encourages application rules would apply. States may make
of classic necessity and proportionality rules indemnification agreements and apportion
when executing purported self-defense liability among themselves. Since allied
actions. Peace and security interests can best nations supporting space conflict activities
be achieved and preserved if necessary and could be construed as launching states,
proportionate responses are presented in liability issues and allocation of liability issues
response to armed attacks. should be resolved before engaging in such
activities.
Attacks on Space Systems Does the Liability Convention offer an

exclusive remedy for rights of a state in event
Conflict in outer space or affecting the domain of an attack on its space systems? No – the
is also limited by a myriad of space Liability Convention does not exclude or limit
governance, environmental, disarmament, and the right of self-defense affirmed in Article 51
arms control agreements. There are and such a reading cannot be found in its
boundaries on these limits. For example, negotiation or record of the U.S. Senate
under the Vienna Convention during time of ratification. The Liability Convention presents
conflict, treaty terms inconsistent with a state other challenges, however, and does not offer
of armed conflict may not apply between a satisfactory disposition to attacks. According
belligerents, unless the terms of the treaty to Adam Frey:
itself are specifically intended to apply during
conflict. Although it clarifies some of the
Outer Space Treaty’s ambiguity, the
Liability Convention still faces
The Liability Convention 141 expands on a criticism. First, its definition of an
topic noted in the Outer Space Treaty that “object” as including “component
“launching states” are liable to other states for parts” does not specify whether this
damage caused by space objects, including includes debris, so some suggest a
debris. States are liable only for direct damage launching state might not be liable for
debris-based damage. Second,
caused by a space object (i.e., loss of life, although the convention imposes a
personal injury or other impairment of health, “fault” standard for damages, it does
or loss of or damage to property). If damage is not define how much care should be
exercised during a launch. In other
words, if two space objects collide,
141
See Convention on International Liability for Damage one state could argue that it took all
Caused by Space Objects, September 1972, known as the reasonable precautions, while the
Liability Convention. injured state could argue that it did
not. Third, fault may be difficult to harm, it must undertake “appropriate

prove since specific pieces of debris international consultations” before
can be difficult to identify and track, proceeding. Conversely, if a state
and the cause of a collision can prove believes it could be harmed by
equally elusive… the mere fact of a another’s actions, it “may request
collision does not automatically put consultation concerning the activity
the state that created the debris at or experiment.” Article [X] further
fault. Finally, there is no established allows states to request observation of
system for processing claims or for each other’s launches, and Article
interpreting or enforcing the [XII] requires any space facilities and
convention’s terms. The convention’s equipment to be open for observation.
litigation mechanisms have never However, the treaty provides no right
been used, so their effectiveness of appeal if two states cannot resolve
remains unknown. 142 these issues themselves. 143
Similar to the Liability Convention, the OST In the end, the Liability Convention’s real
does not set out substantive remedies for a limitations on space conflict activities arise
state that has had its space assets attacked by out of its provision for liability associated with
another state or non-state party. Nonetheless, causing damage to third-parties. These
some, including Frey, suggest the OST may liability issues must be evaluated, addressed,
provide “an appropriate response” if a state and/or mitigated by law-abiding states before
interferes with another’s space activities. It is performing self-defense military activities that
based on consultation: could cause damage to third-party space
systems. Planners must account for payment
Articles [VI] and [VII] hold states of damages or plan to limit such problems.
liable for damage caused by their
space activities and launches, whether
such activity is conducted “by
The 1963 Treaty Banning Nuclear Weapon
governmental agencies or by non- Test in the Atmosphere, in Outer Space, and
governmental entities” within the Under Water, also known as the Partial (or
state. Further, Article [IX] requires Limited) Test Ban Treaty (PTBT), prohibited
states to avoid the “harmful “any nuclear weapon test explosion, or any
contamination” of outer space and
celestial bodies. If a state believes
that its activities could cause such 143
Adam E. Frey, “Defense of U.S. Space Assets: A Legal
Perspective,” Air & Space Power Journal (Winter 2008),
http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/
142
Adam E. Frey, “Defense of U.S. Space Assets: A Legal win08/frey.html (accessed June 2009). On the matter of
Perspective,” Air & Space Power Journal (Winter 2008), consultation, while it appears the Chinese did not offer to
http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/ engage in such discussions, it appears from news reports of
win08/frey.html (accessed June 2009). The statement by Frey the incident the U.S. knew the ASAT test was pending. “The
that “fault may be difficult to prove since specific pieces of events show that the [U.S.] Administration felt constrained in
debris can be difficult to identify and track, and the cause of a its dealings with China because of its view that it had little
collision can prove equally elusive… the mere fact of a leverage to stop an important Chinese military program, and
collision does not automatically put the state that created the because it did not want to let Beijing know how much the
debris at fault” has been forced to the forefront by the 10 U.S. knew about its space launching activities.” Further, the
February 2009 collision between the Iridium 33 and Cosmos U.S. did not request consultation even though the Outer Space
2251 communications satellites. The impact between the Treaty states this was its right. Had the U.S. been willing to
Iridium Satellite LLC-owned satellite and the 16-year-old discuss the military use of space with the Chinese that might
defunct Russian military satellite occurred at 780 kilometers, have been enough to dissuade them from going through with
a low Earth orbit (LEO) altitude used by satellites that it. See Michael R. Gordon and David S. Cloud, “U.S. Knew
monitor weather and carry telephone communications. It is of China’s Missile Test, but Kept Silent,” The New York
considered the most crowded area of space. See “When Times 23 April 2007, http://www.nytimes.com/2007/04/23/
Satellites Collide: Iridium 33 Strikes Defunct Russian Sat in washington/23satellite.html?_r=2&hp=&pagewanted=print&
Unprecedented Accident,” GPS World, 12 February 2009. oref=slogin (accessed June 2009).
other nuclear explosion” in the atmosphere, compliance. Since they provide transparency,
underwater, or in outer space. 144 PTBT is NTM systems are thought to help reduce the
superseded by the Comprehensive Test Ban risk of nuclear war. The earliest of these
Treaty (CBTB) that bans all nuclear testing in provisions was contained in the 1972 ABM
all mediums, though the CTBT has not as of Treaty between the Soviet Union and the
yet entered in force. 145 The OST does not U.S. 146
specifically prohibit testing weapons in outer
space itself, as opposed to on celestial bodies, While the U.S. has withdrawn from the ABM
instead it proscribes the stationing of nuclear Treaty, other treaties in force today contain
weapons on orbit. With PTBT and CBTB, this same prohibition, including the 1987
testing and subsequent use of nuclear weapons Intermediate-Range Nuclear Forces Treaty
in response to attacks on space systems appear (INF), 1992 Strategic Arms Reduction Treaty
to be banned, unless employed in a possible (START I), and 1990 Treaty on Conventional
narrow exception that allows such devices to Armed Forces in Europe (CFE). Recognition
be employed to preserve the “survival of a of the important role played by NTMs has
State.” Employing nuclear weapon systems been made evident. Given the importance of
against conventional space systems probably spaceborne NTMs role in stemming the
could not be shown to support such a survival potential of a nuclear holocaust, non-
objective. interference rules that preserve and allow
adversary access to their systems would
A series of bilateral agreements between the appear to be taking on the trappings of a
U.S. and the former Soviet Union, now held to peremptory norm that nations may want
be binding on Russia by protocol, prohibit treaties to perfect.
interference with early warning systems and
NTMs. As noted earlier, NTMs include a The Environmental Modification Convention
variety of technologies and systems. The of 1978 147 prohibits all military or hostile
definition should include space (e.g., photo- environmental modification techniques that
reconnaissance satellites) and terrestrial assets might cause long-lasting, severe, or
(e.g., land-based radars, seismographs, radar widespread environmental changes in Earth’s
and intelligence systems on ships and aircraft, atmosphere or outer space. “Each State Party
etc.) that can verify arms control treaty to this Convention undertakes not to engage in
military or any other hostile use of
144
Nuclear powers France and China did not sign or ratify the environmental modification techniques having
PTBT. Also, the PTBT did not ban underground nuclear widespread, long-lasting, or severe effects as
testing.
145 the means of destruction, damage, or injury to
Nuclear powers China, Israel, and the U.S. signed, but have
not ratified the CTBT. As of October 2009, 151 States have any other State Party.” 148 “Widespread” is
ratified the CTBT. Thus, one could argue that the norms of defined as “encompassing an area on the scale
the Treaty to ban all nuclear testing in all mediums is of several hundred square kilometers;” “long-
emerging as a universal norm binding upon states that have
not ratified the Treaty. Entry into force of the CTBT is an
146
achievable goal. The CTBT is entering “the most defining See Treaty between the U.S. of America and the Union of
period of its existence,” as there has been a “paradigm shift” Soviet Socialist Republics on the Limitation of Anti-Ballistic
in support for the Treaty since U.S. President Obama set out Missile Systems, 3 October 1972, but no longer in effect as of
the U.S. agenda for non-proliferation and arms control in 13 June 2002 due to U.S. withdrawal.
147
April 2009 followed by his agreement with Russian President Convention on the Prohibition of Military or Any Other
Medvedev in London in 2009 to seek entry into force of Hostile Use of Environmental Modification Techniques, 5
CTBT, http://www.ctbto.org/press-centre/press-releases/2009/ October 1978, known as the Environmental Modification
after-ten-year-hiatus-entry-into-forceof-comprehensive-test- Convention.
148
ban-treaty-an-achievable-goal (accessed January 2010). Ibid., Article I(1).
lasting” is defined as “lasting for a period of What should be concluded if a party protests
months, or approximately a season;” and the effects and damage were unintended?
“severe” is defined as “involving serious or Some suggest a state that creates orbital debris
significant disruption or harm to human life, while targeting specific adversary targets
natural and economic resources, or other would not violate the Convention, but that act
assets.” 149 The Environmental Modification would instead only constitute a violation of
Convention focuses on proscribing military the Geneva Additional Protocol 1. However,
weapons, tactics, and techniques that as to the space environment, the science and
deliberately change natural processes. 150 danger of orbital debris is now very much
acknowledged, notwithstanding denials and
Would the use of nuclear weapons in space protests of any potential offending state.
violate the Environmental Modification Perhaps the requisite hostile intent and
Convention? Perhaps, yes, but only if used deliberate manipulation elements could be
with hostile intent, to deliberately manipulate deduced from the willful and wanton
space environmental processes, with disregard for the damage that occurs and the
widespread, long-lasting, or severe effects, recklessness of the act. This same reasoning
causing damage or destruction to space-based could also be made to prohibit the use of
systems, and directed against another party to nuclear weapons in defense of space systems.
the treaty.
Agreements, such as the 1971 Accidental
Would employing systems attacks that create Measures Agreement (updated in 2004), the
widespread, long-lasting, or severe space- 1988 Ballistic Missile Launch Notification
based debris fields, be unlawful? Again, yes, Agreement, and the 1990 Dangerous Military
if the essential elements of the Convention are Activities Agreement address dangerous laser
violated. A state that creates debris use and dangerous interference with nuclear
intentionally in order to ruin the environment weapons command and control systems, and
for use by its adversary would violate the so potentially limit possible space warfare
Convention. activities. 151 They are intended to prevent
outbreak of nuclear war due to
misunderstanding, accidental launch, or
149
150
Ibid. misinterpretation of unidentified objects
The U.S. Delegation Statement provides: “The detected by early warning systems, and are
Environmental Modification Convention is not an
Environmental Protection Treaty; it is not a treaty to prohibit primarily focused on the topic of
damage to the environment resulting from armed conflict. intercontinental ballistic missiles (ICBMs).
Rather, the Environmental Modification Convention fills a These agreements basically seek to prevent
special, but important niche reflecting the international
community's consensus that the environment itself should not miscalculation by requiring parties to provide
be used as an instrument of war.” The U.S. position on notice whenever there is an accidental launch
“criteria that have been established for determining what of a ballistic missile in the direction of the
constitutes a prohibited action under the convention: first, the
convention specifies military or any other hostile use. The
U.S. understanding is that hostile intent is a precondition for a
151
violation; second, it must meet the definition of an See Agreement on Measures to Reduce the Risk of
environmental modification technique, that is the deliberate Outbreak of Nuclear War Between the U.S. of America and
manipulation of a natural process; third, effects must be the Union of Soviet Socialists Republics, 30 September 1971;
widespread, long-lasting or severe as defined in Article II and Ballistic Missile Launch Notification Agreement, 31 May
related understandings; fourth, these effects must be the 1988; and Agreement between the Government of the U.S. of
means of destruction, damage or injury; and fifth, it must be American and the Government of the Union of Soviet Socialist
directed against another state party. Only if all of these Republics on the Prevention of Dangerous Military Activities,
criteria are met is an action prohibited by the convention.” 12 June 1989.
other party, or when a party’s early warning several long-standing allies limited their
system detects an unidentified object. cooperation with the U.S. on missile defense
related activities, not wishing to participate,
These agreements affect the prosecution of support, or cause a potential violation of the
self-defense in response to attacks on space ABM Treaty, even though they were not
systems. For example, the Accidentals signatories to that agreement. These positions
Measures Agreement with Russia requires the have evolved as perceptions of threats to
parties to take measures to guard against an national interests changed and the U.S
accidental or unauthorized use of nuclear withdrew from the ABM Treaty in 2002. The
weapons. It requires a party to notify the other existence of such agreements and potential
immediately if an accidental or unauthorized limitations on space activities should not be
incident occurs, if an early warning system ignored in a discussion of the law relating to
detects an unidentified object, or if there is space conflict activities.
any other unexplained event involving
possible detonation of nuclear weapons. Citing a changed global environment, the U.S.
withdrew from the ABM Treaty in 2002.
Importantly, the Accidental Measures Assuming a new ABM Treaty is negotiated on
Agreement requires a party to provide the same or similar terms, where would such a
advance notice of any planned missile treaty leave ASATs from a legal perspective?
launches beyond the territory of the launching There is, not surprisingly, more than one
party and in the direction of the other party. answer. Some analysts suggest that it may be
The Launch Notification Agreement requires a impossible to distinguish between ABM
party to provide at least 24-hour advance directed-energy space vehicles and those
notice of the date, launch location, and deployed exclusively for anti-satellite
estimated impact area for any ballistic missile purposes. 152
launch. These notification requirements could
require potentially disruptive or compromising Hurwitz argues that “all extraterrestrial
information exchanges with Russia before autonomous weapons are illegal. However,
prosecuting military space activities, non-nuclear weapons, which are not
especially if space launches are required. Such autonomous, may be stationed and, in
exchanges could limit the ability of the U.S. to accordance with generally accepted principles
prosecute space-related military/conflict- of international law, used in Earth orbit.” 153 In
related activities. short, while the ABM Treaty appears to
prohibit the use of directed-energy weapons in
Although not traditional space “arms control” an ABM mode, “the same technology when
agreements, the U.S. is party to numerous used in the development/testing/deployment
bilateral or multilateral agreements that may of ASATs is not prohibited.
restrict and limit “space activities” from being
performed in or from the territory of another Given the overlap of technologies, careful
state party. For example, in the U.S. pursuit of consideration must be given to whether
a global ballistic missile defense system, it is
entirely foreseeable that states where key 152
Joan Johnson-Freese, “The Viability of U.S. Anti-Satellite
components are located could impose (ASAT) Policy: Moving Toward Space Control, INSS
Occasional Paper 30, U.S. Air Force Institute for National
restrictions on U.S. space or other activities in Security Studies (INSS), January 2000, p. 16.
exchange for the U.S. right to base ground- or 153
Bruce A. Hurwitz, The Legality of Space Militarization
link- segments in that state. In the recent past, (North-Holland, 1986), p. 135.
systems might be favored in one case as an asymmetric advantages space capabilities

ABM system, but not as an ASAT, or vice provide the U.S. and its allies. Adversaries can
versa. This issue generated considerable easily see the tremendous leverage they can
political debates in the 1980s, when debates obtain by disrupting space systems. Given
involving the SDI were also fought over these pressures, space presents a feasible arena
ASAT technologies, options, opportunities, for conflict activities.
and related programs. 154 U.S. ASAT
technology development efforts have Policy, law, and resulting strategy formulation
continued on and off for decades. Peace and for defense of space systems requires more
disarmament advocates now attack U.S. sophistication. Provocateurs advocating and
missile defense systems as fledgling ASAT planning for unconstrained space warfare have
systems, a topic brought to the forefront by the been marginalized over the decades as
2008 interception of the disabled USA 193 seasoned and knowledgeable leaders in the
intelligence satellite by a modified Aegis executive and military departments,
cruiser and missile defense missile over the congressional delegations, and international
Pacific. community approach such options with
extreme caution. If performing self-defense
activities, lawful options must be considered
Conclusions and selected by a state in event an adversary
or entity threatens or attacks its space
“Arming the heavens” might seem a most systems? Employing space systems in accord
tempting option to respond to threats to U.S. with international law is vital to ensure
space systems. continued access to space capabilities and that
Regardless of the “Arming the the space domain remains a peaceful
wisdom of such heavens” might environment as envisioned by the OST
action, the facts Regime. By doing this, the U.S. will maintain
remain that the U.S. seem a most not only an ultimate strategic high ground, but
is dependent on use tempting option also a moral one.
of space systems for to respond to
military operations threats to U.S. We know that under treaty and customary law,
and security; that space systems. the U.S., as well as member states of the UN
these systems are and states that have ratified OST, must use
vulnerable to disruption, attack, and even space for peaceful purposes, refrain from
destruction; and that at stake are the using space aggressively, take care to preserve
the space environment, and be prepared to
154
Once the Strategic Defense Initiative was politicized during indemnify if it damages another non-
the 1980s, debates ran the gamut of the defense and policy belligerent state’s assets. Applicable
communities. Opponents posed objections, most technical, to international treaties, conventions, customary
missile defense claiming – the Soviet ABM radars complexes
were not violations of the ABM treaty; propulsion, sensor, law, and LOAC principles do not specifically
and targeting systems could not be miniaturized for a kinetic describe what the U.S. should or can do in
kill vehicle; kinetic kill technologies could not be integrated preparation for or in response to an attack on
on the battlefield; command and control systems could not be
developed to engage ballistic missiles; software programs space systems. Rather, as some contend, they
needed to manage an effective ABM system requires too highlight what cannot be done.
many lines of code; lasers cannot engage and defeat missile
targets; withdrawal from the ABM treaty would lead the U.S.
straight into World War III; and the like. Each of the technical The right to respond to attacks against space
objections has been defeated by “smart” technical programs. systems is limited. Relevant treaties,
customary law, the LOAC, and other legal some attacks and threats as a mere distraction.
principles substantially restrict space warfare Satellite vulnerabilities can be reduced by
options and the potential for such conflict using anti-jamming measures; hardening to
among law-abiding nations. The use of force protect against electromagnetic pulses,
is allowed only in self-defense or in accord radiation, or explosions; improving
with authorization of maneuverability to actively avoid attacks. Yet
the UN to maintain The right to as we have seen with developments in North
international peace Korea, developing states and terrorist groups
respond to
and security. Kinetic, can gain access to space system and propose
electromagnetic or attacks to engage in serious mischief. Attacks could
information operation against space range the span of space systems – terrestrial,
attacks against space systems is link, and on-orbit assets. There is no assurance
systems are each an limited. a self-restraint option will protect orbital
“armed attack” to assets.
which the use of force is permitted in accord
with the self-defense exception. The right to If deterrence fails, a lawful self-defense
conduct conflict and space warfare activities “punishment strategy” can be employed.
involving space systems is constrained by the Absolute flexibility should be maintained by
LOAC, and the right of anticipatory self- the U.S. and its allies in the way they wield
defense may lawfully be employed in defense such deterrence, if they choose to wield it at
of space systems only in limited all. The lawful range of diplomatic,
circumstances. information, military, and economic
instruments of national power should be
If engaged in space-based warfare, a state considered and employed. These instruments
must comply with the legal obligations set out are not limited to just offensive or defensive
in the OST, Registration Convention, Liability counterspace or space control activities,
Convention, PTBT/CTBT, Environment though preparing for destructive space-based
Modification Convention, and other treaties. combat activities must be carefully considered
Certain satellite systems and their supporting and generally deferred given the risks such
ground-based, and command and control conflict presents to the very space
systems should not be attacked; this could environment the U.S. wishes to protect.
include spaceborne components of NTMs, Nevertheless, preparing to employ a complete
especially if they are necessary and important suite of these instruments “would signal to any
to reduce chances of a full-fledge nuclear adversary considering U.S. space systems as a
conflagration, or resolution of such a conflict. legitimate target that the U.S. has the means
Even if lawful means and methods are and resolve to respond if it so chooses.” 155
employed and targets engaged, physical, Preparing for the lawful use of U.S. and allied
technical, environmental, and political retaliatory measures can encourage or, if
realities, and their risks and benefits, still limit necessary, compel offender reconsideration of
options to defend and fight space systems; its course of action and compliance to
specifically, they limit the when, where, and international morays or legal obligations if
how adversary space systems can, or should engagement cannot succeed.
not, be engaged.
155
See John B. Sheldon, “Space Power and Deterrence: Are
The U.S. can lawfully take a passive approach We Serious,” Marshall Institute Policy Outlook (November
to defend its space systems, allowing it to treat 2008): 3-4.
Important, but lost on many who seek to and not contaminate the environment. SSA
contest the space domain, a retaliatory and other sensor systems, command and
deterrence strategy for the U.S. has little control, and shooter capabilities may not be
credibility if directed at adversary space assets powerful and nuanced enough over the near-
since the U.S. “…is the most space-reliant term to achieve all the results needed and
country today. Threatening to attack adversary desired. That may change as space control
satellites in response to attacks on U.S. technologies evolve.
systems may prove fruitless if the adversary in
question does not leverage significant In the event of war, the U.S. and its allies may
military, diplomatic, and economic power defend components of their space systems that
through such systems…” 156 Presently, the U.S. are subject to jamming and cyber attack since
is the only globally space-enabled power, so such attacks can be considered armed attacks
adversary spaceborne components probably in a modern context. In doing so, they must
should not be engaged tit-for-tat. 157 Such accurately determine the source of the attack
would only be a pyrrhic act. This may change and confirm adversary state or non-state actors
as other nations gain the wherewithal, intended to target the system at issue and
experience, and access to space capabilities cause destructive effects. The U.S. should be
and fully exploit them for military purposes. able to treat certain adversary satellites and
supporting systems as legitimate targets only
Non-aggressive weaponization of space is after ensuring that satellite’s loss would not
legal as is the use of force in self-defense excessively harm civilians or the space
against space systems components whether in environment, or violate other peremptory
space or the terrestrial environment. Treaty norms. The U.S. response must be necessary
and U.S. policy allows developing and and proportional; not more than that amount
deploying systems designed to protect necessary to accomplish military objectives to
satellites, or defeat ASAT and strategic threats defeat adversary forces and to achieve the
(e.g., ICBMs). Employing a weapon system in enemy’s partial or complete submission.
self-defense to engage targets, whether
ground, air, or space-based, if accomplished in Attacks against adversary NTMs capabilities
such a way the combat event does not create should be avoided as attacking them could
space debris, and is targeted in accord with violate peremptory norms to take all actions
LOAC principles, appear to be lawful under necessary to prevent nuclear war, ensure
current treaty and customary law. Jamming compliance with nuclear weapons arms
technologies can be employed to deny control agreements, and prevent attacks by
adversary access to space and protect weapons of mass destruction. On the other
spacecraft, and their effects may be reversible hand, the U.S may lawfully respond to attacks
against its own national NTMs and nuclear
156
Ibid.
command and control capabilities under rules
157
Joint Publication 3-14, 6 January 2009, p. II-5. Negation relating to self-defense and, if necessary,
includes “Active and offensive measures to deceive, disrupt, reprisal. 158
deny, degrade, or destroy an adversary’s space capabilities.
Negation includes actions against ground, data link, user,
158
and/or space segment(s) of an adversary’s space systems and Reprisals are acts taken in response to LOAC violations.
services, or any other space system or service used by an Such an act of reprisal would be otherwise forbidden if it was
adversary that is hostile to U.S. national interests.” Also, see not for the prior unlawful act of the enemy. A lawful act of
the 2006 U.S. National Space Policy which states: “…the reprisal cannot be the basis for a counter-reprisal. To be
U.S. will …deny, if necessary, adversaries the use of space lawful, a reprisal must: timely respond to grave and
capabilities hostile to U.S. national interests.” manifestly (clearly) unlawful acts; be for the purpose of
Conflict involving space systems need not be environment for extended periods may be
space-based. In defending its systems, the impermissible; hence, the U.S. must observe
U.S. could lawfully use existing terrestrially- the obligation to avoid and minimize the
based military systems to defeat and/or creation of debris when operating defensive
prevent adversary weapons from entering space weapons. “Soft-kill weapons that
space, or from being successfully operated disable are clearly acceptable and favored if
there. Adversary ground control stations could weapons need to be employed against space
be engaged and command and control based components. Explosive weapons, such
linkages interrupted, reduced, or destroyed. as space mines surrounding satellites, are not,
especially since they can create significant
If facts establishing conditions of immediacy space debris.” 159 Given the potential for
and necessity to U.S and allied systems are resulting debris, taking action to destroy or
satisfied, anticipatory self-defense actions damage adversary space systems “may violate
could be undertaken. The goal of such the duty to avoid the harmful contamination of
anticipatory self-defense actions could involve space” except in the most pressing
targeting the enemy’s systems before and circumstance. 160
during launch. Jammers could also be located,
degraded, and destroyed; e.g., GPS jammers The U.S. is the global leader in space and has
were engaged and destroyed during Operation filled this role for half a century. Its systems
Iraqi Freedom by GPS-aided Joint Direct work and have been revolutionary in
Attack Munitions described as precision presenting new capabilities in the civil,
guided munitions or “smart bombs.” Spacelift commercial, and military arenas. As it has
facilities could also be engaged to disable done for decades, the U.S. enjoys a unique
adversary launch capabilities. position to shape the direction of global space
activities for this new century. With this
The U.S. is obligated to protect the space position comes great responsibility – to forge
environment. Obligations imposed by the behaviors to mitigate space debris, prevent
Outer Space and Environment Modification armed conflict, and enhance the peace,
treaties, Liability Convention, and other security, and prosperity of spacefaring nations
agreements, and physical reality, make it and the rest of the world. Space capabilities
politically wise, and immensely practical to are at risk to a myriad of threats, but continued
keep space safe and usable. As the nation that efforts to improve space governance by
exploits space capabilities to their maximum international treaties, customary law, best
extent, the U.S. has the most to lose if the practices, policy, strategy, and overarching
domain is compromised and lost to unwise global behaviors will secure the high frontier.
operations or conflict. Self-defense acts that
seek to or actually damage the space
compelling the adversary to observe the LOAC and not for

revenge, spite, or punishment; give reasonable notice that
reprisals will be taken; have had other reasonable means
attempted to secure compliance; be directed against the
personnel or property of an adversary; be proportional to the
original violation; be publicized; be authorized by national
159
authorities at the highest political level. Only the President of Adam E. Frey, “Defense of U.S. Space Assets: A Legal
the U.S., as Commander-in-Chief, may authorize U.S. forces Perspective,” Air & Space Power Journal (Winter 2008).
160
to take such actions. Ibid.
The New Space Order: Why Space Power Matters for Europe
Nicolas Peter
Research Fellow, European Space Policy Institute
More than fifty years since the dawn of the prowess is one of the key elements of this
Space Age and twenty years since the end of emerging flat/spiky system of competitive
the Cold War, space affairs and politics multipolarity. Governments are fully engaged
remain interlinked. Space activities are in improving their national economies and
increasingly tied to national power for major overall competitiveness, but also because they
world powers, and political objectives are still realize that it represents for them a means,
the driving force for most space activities. Yet among others, for achieving national
in an ever more globalized and competitive objectives, including foreign policy motives,
multipolar world, status and power that arise especially in the domain of “S&T politics,”
from the employment and access to the most such as nuclear energy, but also in the area of
advanced technologies are now widely space affairs.
perceived as key to the powers and standings
of states. The importance of space activities is In the early years of the Space Age, the
increasing, transitioning in terms of perception performances of the United States (U.S) and
by today’s world leaders from a “nice to have” Soviet Union in space activities came to be
to a “need to have” status. A sound interpreted as a
understanding of the nature and exploitation The world is measure of their
of space power is critical for Europe as it
becoming at relative military,
provides tangible and intangible benefits back economic, and
on Earth that allow Europe to maintain its the same time scientific strength
position in the global “space hierarchy” in the both “flat” and on the world
21st Century. “spiky.” stage. During the
Cold War, human
The world, since the end of the Cold War, is and robotic space accomplishments became on
increasingly interlinked and interdependent at the geopolitical level an element of a
many levels. At the same time, the balance of country’s power and influence. Space, since
powers across the world is changing and the 1950s, is a key attribute of a state’s power.
shifting with emerging world powers rising, However, since the 1990s, the space context is
particularly in Asia. This is complicated by dramatically evolving. Similar to the process
the fact that there exists a renewed emphasis of internationalization of innovation, space
and importance accorded by states on spheres activities are expanding beyond the traditional
of influence based on geography or on topical
issues. In particular, a greater importance is
placed on a country’s ability to innovate as a
source of competitive advantage. The world is Brief History of the Twenty-First Century (Farrar, Straus and
becoming at the same time both “flat” and Giroux, 2005). A “spiky” world suggests that by almost any
“spiky.” 1 Science and Technology (S&T) measure the international landscape is not at all flat. On the
contrary, the world is spiky with concentrated centers of
power, influence, economic horsepower and cutting-edge
1
A “flat” world implies that the world is more globalized and innovation. See Richard Florida, “The World is Spiky,” The
interconnected. See Thomas Friedman, The World Is Flat: A Atlantic Monthly, October 2005.
54 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe
spacefaring countries 2 to new global players, elements of the Cold War rivalry between the
such as China and India, as well as other U.S. and the Soviet Union, principally as a
emerging countries, with changing patterns of substitute for armed conflict. 5 During this
international space relations leading to a new phase, space activities were limited to a small
space order. number of other countries, primarily in Europe
and Asia, but with
In this evolving geopolitical context, the …the more limited
importance of space power is increasing as importance of capabilities than the
space remains a proxy demonstrating power space power is two superpowers.
and because more actors are using space. increasing as Indeed, the technical
Although there is a great deal of rhetoric about space remains difficulties and
the impact of S&T on international affairs, financial burdens
a proxy
there is relatively little analytical work on the associated with the
link between space and national power, as demonstrating full range of space
well as between space power and international power... activities remained
affairs. This paper aims to provide a prohibitive for most
preliminary overview of a complex and wide- countries; only a limited number of countries
ranging subject that brings together the were able to benefit from the use of space
important issue of space power and European technologies and activities due to the inherent
influence in international relations. technical complexity, high costs associated
with space activities, and the necessity for a
high-skilled workforce.
Towards a New Space Order
The current space phase, Space 2.0, which
Since the pioneering of space activities, the started at the beginning of the 1990s as a
geopolitical context of space affairs changed result of the changing geopolitical context
dramatically. 3 The history of space activities linked to the end of the Cold War, is
can be structured into three phases, each characterized by a multipolar world and the
having distinct features and characteristics: (1) rise of many new actors with increasing
“proto-space age” (pre-World War II); (2) technical capabilities, advancing an
“Space 1.0” (Cold War); and (3) “Space 2.0” internationalization of space. In particular, a
6
(post-Cold War). 4 technological revolution linked to the

development of small satellite technology, the
Space 1.0 took place from the late 1950s to increasing reliability and accessibility of
the late 1980s. For more than three decades, commercial-off-the-shelf (COTS) technology,
space was viewed as one of the emblematic and the multiplication of commercial services
leading to a reduction of the price of access to
2
The term spacefaring country defines a country capable of
space facilitate the involvement of non-
developing, launching, and operating satellites in space traditional actors in the space arena. 7
autonomously. This implies the state possesses a fairly robust Countries previously unable to pursue space
launch infrastructure and indigenous capabilities to
manufacture and operate space systems.
activities now have a greater opportunity to
3
Nicolas Peter, “The Changing Geopolitics of Space
Activities,” Space Policy 22 (2006): 100-109.
5
4
Nicolas Peter, “Space Power and Europe in the Need for a Nicolas Peter, “The Changing Geopolitics of Space
Conceptual Framework,” paper presented at the 59th Activities,” Space Policy 22 (2006): 100-109.
6
International Astronautical Congress, Glasgow, Scotland, 29 Ibid.
7
September - 3 October 2008. Ibid.
enter the space arena; the space environment The multiplication of actors in the post Cold
is no longer the exclusive province of a War context is accompanied by an emerging
handful number of countries as it was during globalization of space activities with actors
the Cold War. now scattered all over the world and no longer
limited to the “North.” 10 The multipolar space
Spacefaring powers are joined by other environment and the resulting new space order
countries that have some degree of space is characterized by the rapid integration of
involvement. An increasing number of China and India as new space powers, and the
countries have acquired over the years space entry of countries
capabilities for national reasons (e.g., support …a successful particularly from the
national economy and overall space program “South,” like
competitiveness, public services, and ensure brings Malaysia, Thailand,
national security), as well as international heightened and Indonesia. 11
reasons (e.g., regional influence and prestige). global prestige New ambitions to
They recognize the advantages of space
and increased create dedicated
activities from the tangible aspects of space agencies are
positioning-navigation-timing (PNT), remote domestic surfacing on all
sensing, and telecommunications to the more credibility and continents and more
abstract aspects of political influence and prowess. countries are
prestige. There are tangible benefits that result formulating space
from investing in space, such as job creation; policy to guide their domestic and
stimulation of national interest in Science, international space activities with the principal
Technology, Engineering, and Mathematics aim being to improve their capabilities and
(STEM); and spin-off technologies resulting competitiveness. 12
from research and development (R&D). There
are intangible benefits as well – a successful 10
It is important to note that national organization of space
space program brings heightened global activities and the weight of national budgets differ greatly
prestige and increased domestic credibility among countries around the world. Not all countries involved
in space activities do posses a national space agency, and the
and prowess. national authorities responsible for space matters vary widely.
A first category is composed of countries with their own
While few countries have independent launch agencies devoted more or less exclusively to space. In a
second category, space affairs are directly handled by a
capability (nine total), and even less have ministry (education, research and technology, industry or
human spaceflight capabilities (three total), trade, defense, etc.) or by an inter-ministerial entity. See
the number of players controlling their own Nicolas Peter, “The Changing Geopolitics of Space
Activities,” Space Policy 22 (2006): 100-109.
communications systems have doubled since 11
The use of the term “South” refers to all developing
the end of the 1980s. 8 There are, as of countries, as well as all Least Developed Countries (LDCs). It
December 2009, 27 countries with satellite- rests on the fact that the entire world’s industrially developed
countries (with the exception of Australia and New Zealand)
based Earth observation resources compared lie to the North of developing countries. However, the
with three in 1980, not to mention the diversity of countries in the South must be kept in mind.
numerous countries that have their own image Some countries, such as Argentina, Brazil, China, India,
Mexico, South Africa, and South Korea have enviable records
receiving stations for remote sensing systems. 9 of technical and scientific achievements compared to others in
the South and even the North.
12
Nicolas Peter, “Space Power and Europe in the 21st
8
Bertrand de Montluc, “The New International Political and Century,” European Space Policy Institute Perspectives 21,
Strategic Context for Space Policies,” Space Policy 25 May 2009, http://www.espi.or.at/images/stories/dokumente/
(2009): 20-28. Perspectives/espi%20perspectives%2021%20.pdf (accessed
9
Ibid. January 2010).
As a reflection of the international system, the Soviet Union/Russia. Roles and relationships
current space environment is characterized by in space are being redefined in the new space
a growing number of countries with varying order. The U.S. and Russia are no longer the
ranges of space capabilities (e.g., technical only players that can lead cooperative
and scientific). This, in turn, is leading to projects. There are now numerous actors with
more options for international cooperation in varying degrees of capabilities allowing them
the second space to lead cooperative ventures as well.
phase as there is a There is a
growing pool of mushrooming The patterns of relations in space are
potential partners to of bilateral and fundamentally changing. There is now a
take part in space multilateral variety of cooperation possibilities leading to
activities. 13 States cooperation…. new relations evolving beyond the traditional
around the world are “North-North” cooperation and the unilateral
now looking to a variety of partners as they “North-South” axes of cooperation of the first
plan their future endeavors since partnerships space phase. The new axes of “South-South”
are helpful to transfer technologies and cooperation has been growing in recent years
explicit and tacit knowledge. Those in many fields, such as in energy, and space is
partnerships are driven by scientific and no exception as they are now more countries
technical motives, often with “high politics” from the South with mature technical
as objectives. There is a mushrooming of capabilities that are using space to reach out to
bilateral and multilateral cooperation, new partners. This leads to the development of
including regional cooperation, and there is new networks of cooperation as there are
the development of a complex and cooperation possibilities with new hubs and
multidimensional web of relations in the space centers of gravity
arena. 14 …being involved appearing in Asia
in space affairs is and centered on
A bipolar space world has been replaced by a increasingly being China and India.
pluralistic space context marked by a plethora seen… as a New axes of
of complex relationships. The early years of
necessary cooperation are
international space cooperation were arising; some are
characterized by power asymmetries in the element to being, deepening, while
two superpower’s favor vis-à-vis their partners at a minimum, a others are
as illustrated with U.S.-European space regional or weakening. 15 The
relations. However, the traditional asymmetry continental power. multiplication of
in space activities, while still existing in term space actors and
of resources, tends to disappear in regard to the new relations among institutional entities
capabilities with the emergence of spacefaring are leading to the emergence of a new space
countries with similar capabilities to the order that was unforeseeable twenty years ago.
historical two space powers, the U.S. and
In the current phase of space activities, there is
13
International cooperation in space can be defined as any
also a growing diversity in the types of actors
sharing of knowledge or technology between two, or more, involved in space affairs that influences the
states within the context of mutually acceptable conventions overall space context. The involvement of
for the exchange of that knowledge or technology. It can take
many forms, but in general both parties can derive benefits.
non-governmental organizations (NGOs) and
14
Nicolas Peter, “The Changing Geopolitics of Space
15
Activities,” Space Policy 22 (2006): 100-109. Ibid.
other non-state actors, like private enterprises, by partnering with other states or commercial
are leading to a multiplicity of actors and entities, receive certain kinds of space support.
stakeholders in the space environment.
Dozens of companies offer services in open The space context is evolving towards a new
global markets and states can now meet much space order where space activities are
of their need for space benefits in the market becoming more widespread. However, space
place due to the wide array of activities are prioritized differently depending
communications, navigation, reconnaissance, on the country, and consequently the
weather satellite, and launch services objectives of space programs differ
commercially available. Commercial accordingly. A growing number of states are
technology and know-how transfers have using space programs for political and
made possible the global distribution of space symbolic objectives, such as demonstrating
technologies. The declining price, widening and increasing national pride and to achieve
availability of satellite construction, and space national independence, regional influence, and
launch capabilities allow an ever growing technological maturity. 16 In the current space
number of states to establish a presence in phase, being involved in space affairs is
space. While to date only a few states have increasingly being seen, even by newcomers
mastered the full range of space capabilities, to the space arena, as a necessary element to
the proliferation of space products and being, at a minimum, a regional or continental
services are allowing states, and non-state power. For world powers, space is
actors, to benefit from the advantages increasingly perceived as an indispensable
provided by space activities without element of national power. The importance of
developing, launching, and operating being involved in space affairs is growing in
indigenous space systems. Private companies the unfolding new space order, and no country
of traditional space powers are the main can now be regarded as a world power, or
drivers in this process. Also, new and remain one, unless it possess cutting-edge and
emerging actors, as they climb the global diversified space capabilities.
“space hierarchy,” are providing new sources
of technologies and fostering the proliferation
of space technologies worldwide. The Growing Importance
of Space Power
While the internationalization of space is not
entirely new, it is now taking place at a much In recent years, with the aforementioned
faster pace. The space system is now more evolution of the geopolitical context,
open and dynamic than during the Cold War. traditional bases of national power have been
Space is spreading more widely, including to fundamentally transformed. Military and
developing countries, and involves more than economic metrics are no longer the sole
simply purchasing technologies. This trend is indicators of national power. 17 Other variables
likely to progress even more rapidly over the are increasingly important, such as S&T
coming years. This means that a country does prowess, and in the 21st Century the overall
not have to be a technologically advanced political, economic, and technological
country to acquire space capabilities and this
16
makes all countries potential space players. Bertrand de Montluc, “The New International Political and
Strategic Context for Space Policies,” Space Policy 25
The asymmetric advantage the superpowers (2009): 20-28
once enjoyed because of their space prowess 17
Herein, national power is defined as the capacity of a
is eroding because many countries can now, country to pursue strategic goals through purposeful action.
leadership of a country must be shown in power. 20 According to Colin Gray, “space

many areas, space being one of them. power suffers from an unusual malady: an
acute shortage of space-focused strategic
Having now passed its 50th anniversary, the theory and the lack of
Space Age has attained a great degree of Space power a binding organizing
maturity. 18 Space activities are indispensable is not simply concept to aid
tools for modern society that have proliferated satellites and understanding of what
globally. When a state seeks to garner more it is all about.” 21
power, it is increasingly being involved in access to Nevertheless, there is
space affairs as this is a symbol of technology space; it is no void of space
progress. The range and pervasiveness of anything and power theory. There
activities in space resulted in these activities everything a are numerous
becoming tied, over the years, to national country can proposed space power
power. Space activities represent a definitive achieve theories, but none has
measuring device for the relative status of achieved consensus in
countries and an indicator of a state’s weight through the space community;
and influence on the global scene. space. more than five
decades since the first
Concomitantly, the proliferation of space steps into space, there is no definitive work on
capabilities in recent years has not elevated space theory comparable to the writings of
every country into the spacefaring category. Clausewitz, Mahan, and Mitchell among
Only a certain number of attributes confer this others in their respective fields. 22 Space power
status: access to space and the ability to still lacks a holistic approach and its elements
pursue activities autonomously. Nonetheless, remain disjointed and embryonic in
a sound understanding of the nature and comparison to other domains of land, sea, and
exploitation of space power is necessary air.
because it has consequences and profound
implications, both domestically and One of the most pervasive elements
internationally, and gives additional overall confronting the space community is the lack
national power to a state as space provides for of common vocabulary. The need for a solid
soft power projection. 19 definitional construct is of pivotal importance
to develop a better understanding of the
The body of space power literature lacks a practice of space power, including its potential
single comprehensive theory that thoughtfully and its implications. While different
defines, explains, and predicts the nature, definitions emphasize different aspects, no
significance, and functioning of space definition covers all aspects of the actors,
capabilities, functions, and purposes of space
20
Nicolas Peter, “Space Power and Europe, in the Need for a
18
Nicolas Peter, “Space Power and Europe, in the Need for a Conceptual Framework,” paper presented at the 59th
Conceptual Framework,” paper presented at the 59th International Astronautical Congress, Glasgow, Scotland, 29
International Astronautical Congress, Glasgow, Scotland, 29 September - 3 October 2008.
21
September - 3 October 2008. Colin Gray, “The Influence of Space Power Upon History,”
19
Nicolas Peter, “Space Power and Europe in the 21st Comparative Strategy 15 (1996): 293-308.
22
Century,” European Space Policy Institute Perspectives 21, Nicolas Peter, “Space Power and Europe, in the Need for a
May 2009, http://www.espi.or.at/images/stories/dokumente/ Conceptual Framework,” paper presented at the 59th
Perspectives/espi%20perspectives%2021%20.pdf (accessed International Astronautical Congress, Glasgow, Scotland, 29
January 2010). September - 3 October 2008.
power. The most common definition is one of others. In other words, space power is the
from the work of Lupton. He defines space pursuit of national objectives through the use
power as the “the ability of a nation to exploit of space affairs. 25
the space environment in pursuit of national
goals and purposes, and includes the entire Space power has the potential to provide
astronautical capabilities of the nation.” 23 significant contributions to the political and
strategic objectives of governments that
Yet this definition does not capture some undertake space activities. It can, for instance,
important realities of the emerging space support a country’s overall national power and
order. Space power can be defined herein as international standing. Space power alone,
the “total strength and however, cannot ensure the attainment of
ability of a state to …as long as terrestrial political objectives; it must be
conduct and influence there is not combined with other power elements.
activities to, in, major conflict, Nonetheless, space power is a major element
through, and from the most of national power, and it is becoming a
space to achieve its important form strategic concern for many countries. Space
goals and objectives power is not simply satellites and access to
(security, economic,
of space space; it is anything and everything a country
and political) to affect power is non- can achieve through space. 26
desired outcomes in military.
the presence of other The foundations of space power range from
actors on the world stage, and if necessary, to obvious hardware elements (e.g., launch sites;
change the behavior of others by exploiting launch vehicles, telemetry, tracking, and
space systems and associated ground communications sites; on-orbit satellites; and
infrastructure as well as political leverage it other spacecraft), to socioeconomic elements
has garnered.” 24 (e.g., human capital), and to political and
regulatory elements (e.g., number of seats in
This definition is inclusive of the essential international organizations and other relevant
elements for any definition of space power. It bodies). 27 Spacefaring countries possess
focuses on states as the main space actors, on inherent attributes of space power. Any state’s
national objectives, the use of space as a approach to space power depends on its
medium distinct from other media, and the use perception of the strategic environment and its
of capabilities that are required by the space position relative to other space actors, and the
medium. Space power is about the inherent value of space power depends on
exploitation of the space environment, and the what it allows you to do. Moreover, a
purpose of that exploitation is to achieve some spacefaring country can be a major actor in
national objectives or purposes. It is the ability domains linked with space activities (e.g.,
to use space to get desired outcomes by
influencing the environment and the behavior 25
Ibid.
26
Nicolas Peter, “Space Power and Europe, in the Need for a
Conceptual Framework,” paper presented at the 59th
23
David Lupton, On Space Warfare: A Space Power Doctrine International Astronautical Congress, Glasgow, Scotland, 29
(Air University Press, 1988). September - 3 October 2008.
24 27
Nicolas Peter, “Space Power and Europe in the 21st Nicolas Peter, “Space Power and Europe in the 21st
Century,” European Space Policy Institute Perspectives 21, Century,” European Space Policy Institute Perspectives 21,
May 2009, http://www.espi.or.at/images/stories/dokumente/ May 2009, http://www.espi.or.at/images/stories/dokumente/
Perspectives/espi%20perspectives%2021%20.pdf (accessed Perspectives/espi%20perspectives%2021%20.pdf (accessed
January 2010). January 2010).
technical and scientific activities), but this global position that allows influence in the
does not necessarily imply that this actor international context.
possesses the complete spectrum of space 2. Space power allows for the development
activities or that this actor can exercise space of a highly skilled technological workforce
power to its maximum. 28 and a dynamic industrial base that are both
critical for a country’s economic
Not all states have developed similar space competitiveness.
capabilities (space is also spiky) and there 3. Space power can be used as a pressure
exist gradations of advantage. It is necessary point to support political decisions since it
that a country fully demonstrate “political can be an element to dissuade targeted
will” and develop the attendant national policy players of hostile actions and can also be
and strategy to exploit the elements of space used to apply force.
power. Space policies and programs when 4. Space power can help to promote
well conceived, linked, and executed provide awareness of a common identity among
tangible and intangible space power benefits. citizens and demonstrate increased
confidence in future capabilities.
There are different elements in the space
power continuum with a complex interaction There is no general hierarchy of these
between civilian, economic, and military attributes since they do not exist in isolation
programs and assets, as well as soft, from one another and various traits are tied
economic, and hard powers. 29 Space power is together. 31 Space power leverages different
multidimensional and demarcated by elements and is a foundation for a state’s total
scientific, political, economic, and geopolitical power capability and, by its very nature,
dimensions. Exercising space power conveys enables the exercise of influence over a broad
a variety of benefits to space actors, such as spectrum of areas. The relative value of space
national and international prestige, military power depends on how much an actor uses
advantage, economic competitiveness, and them and for what. Space power can be
scientific and technical prowess. It also applied in different ways. It can provide direct
demonstrates the willingness of a state to benefits to the owner of space assets, but it
increase its standing in the global “space can also be used to encourage and reward
hierarchy.” others, dissuade targeted players, and
ultimately, it can be used to apply force. All of
Using the traditional four effects of national these demonstrate the flexibility and
power, the impacts of space power can be versatility of space power. 32
categorized as: (1) diplomatic; (2) economic;
(3) military; and (4) cultural.30 While the arguments over possible theories of
space power continue, space power is being
1. Space power is a means of impressing the exercised by all spacefaring countries,
world through the possession of elaborate purposefully or not. Today, space power is
space capabilities illustrating an assertive inseparable from all other forms of power due
28 31
Ibid. Ibid.
29 32
Nicolas Peter, “Space Power and Europe, in the Need for a Nicolas Peter, “Space Power and Europe in the 21st
Conceptual Framework,” paper presented at the 59th Century,” European Space Policy Institute Perspectives 21,
International Astronautical Congress, Glasgow, Scotland, 29 May 2009, http://www.espi.or.at/images/stories/dokumente/
September - 3 October 2008. Perspectives/espi%20perspectives%2021%20.pdf (accessed
30
to the ubiquitous and pervasive nature of and raises the attractiveness of a country for
space activities. There are, however, only a partnerships.
few historical examples of the utilization of
space power to date. This short history of Governments initiate or participate in
space exploitation limits the evidentiary base international S&T cooperative ventures for a
from which cogent conclusions can be drawn. number of scientific or technological reasons
For example, only since the first U.S.-led Gulf that have been well documented. International
War are there examples of the utilization of S&T agreements are also used by policy-
space power to support hard power (e.g., crisis makers to serve foreign policy purposes; the
in Yugoslavia, and the current conflicts in Iraq signing of an international S&T agreement
and Afghanistan). Despite this limited set of between governments or international
historical evidence, space power is an organizations can indicate a willingness to
important reality. Also, as long as there is not improve relations among countries, leading to
major conflict, the most important form of broader cooperation. S&T activities are often
space power is non-military. For space power, used to establish a network of international
soft power and economic power are just as partnerships to attract other countries in
important as hard power. Space power has someone’s sphere of influence or reinforce
profound implications both domestically and existing relations as there are diplomatic gains
around the world in terms of the credibility of to be made through partnerships. Many
a country’s capabilities, and it provides both countries are using S&T as a political tool to
symbolic and political advantages that are reach non-traditional partners to build trusting
beyond quantifiable material benefits. relationships across political borders as
international cooperation in S&T allows
countries to engage in a public diplomacy of
Space Power deeds/actions and not just words.
and International Relations
S&T diplomacy – defined here as scientific
The competition for status and global and technological cooperation and
influence in many different domains remains a engagement with the explicit intent of
key feature of today’s multipolar and building positive relationships with foreign
heterogeneous international scene. With the governments – has played an important, often
recognition in recent decades of the increasing underappreciated, role in the foreign policy of
role played by S&T for innovation and world powers over the past fifty years.
economic development, more dedicated International cooperation in S&T has been
policies are implemented throughout the world growing steadily since World War II and can
to reinforce, protect, and enhance national now be considered the biggest contemporary
technological capabilities. Governments from axis of civilian governmental cooperation. 33
all over the world recognize the importance of Eugene Skolnikoff notes that these two
S&T as a critical element contributing towards systems, foreign policy and S&T, operate in
the development and implementation of strong an international environment that is
economic, political, national, security, and increasingly overlapping and this aspect of the
social future of any country. They also relationship continues to converge in recent
recognize that S&T can provide external
advantages at the international level as S&T
prowess contributes to diplomatic leadership, 33
Nicolas Peter, “Towards the Emergence of EU Space
creates respect in the international community, Diplomacy,” Space Policy 23 (2007): 97-107.
years. 34 Increasingly, foreign policy contains governments to influence outcomes. Space

issues with a scientific component and science activities enable states to wield other
grows more international in space. 35 Large- instruments of national power with greater
scale space projects are emblematic domains precision, timeliness, and effectiveness. Space
in which S&T is mobilized to serve foreign activities blur the lines between domestic and
policy. international affairs due to their very
international nature and due to the fact that
While S&T cooperation developed, until domestic policies impact the global scene.
recently, largely independently of formal Space affairs are an extension of the terrestrial
foreign policy objectives, for space this is a political environment.
different. Space activities, since the beginning
of the Space Age, are a tool for foreign policy From a political point of view, space is rich
used to directly with complex political and strategic
achieve diplomatic Space assets relationships. Space affairs are an instrument
objectives and to are not only the of superpower status since the launch of
gather information eyes & ears of Sputnik in 1957, and space power during the
on geopolitical governments… Cold War was a key aspect of the international
events of concern system where countries jockeyed for position
they also allow
(e.g., monitoring a and global influence. Space power enhanced,
crisis). There is also governments to for example, the Soviet Union’s prestige by
an element of soft influence being first to launch an artificial satellite or
power to reach out outcomes. the prestige of the United States by being the
to partners and to first to land humans on the Moon. Those
impress others. 36 With the exception of achievements suggested that success in space
scientific research or technology development were the luxuries of an advanced state – the
missions, activities in space are no longer an product of the intellectual, engineering, and
end in-and-of-themselves, but a means for manufacturing elite of the country – and they
accomplishing other national objectives. 37 became landmarks in the Cold War race for
prestige and power demonstration.
The role of “space in foreign policy” and of
“foreign policy in space” is intricate. Space Space put forward a new criterion to
assets are not only the eyes and ears of determine the global hierarchy along with
governments and allow monitoring events nuclear power status. Space affairs, from the
around the world, but they also allow dawn of the Space Age, represent a measure
of national prestige and are an indicator of a
34
Eugene Skolnikoff, The Elusive Transformation: Science, county’s influence on the global scene. The
Technology and the Evolution of International Politics spread of space capabilities and the rise of
(Princeton University Press, 1994).
35
Caroline Wagner, “The Elusive Partnership: Science and new spacefaring countries are now factors
Foreign Policy,” Science and Public Policy 29 (2002): 409- woven into existing patterns of international
417.
36
affairs. Geography is one of the bedrocks of
Space assets have the potential to affect the behavior of an
international actor by prestige projection, technology
international politics, like the board of a chess
partnerships, access to space services, industry services, game. Space is bringing a novel redistribution
information exchange, and legal development among other of power, which reduces the importance of
factors.
37 proximity and endows non-state actors with
While space agencies are not responsible for making foreign
policy, they play an important role in foreign policy’s high levels of power. It is hard to imagine a
execution through international engagement. strategic actor performing well in the 21st
Century without being engaged in space and Europe in the Unfolding

understanding and taking into account space New Space Order
power. At the same time, the utilization of the
space environment presents new There is a wide range of reasons why
vulnerabilities, as well as the opportunities governments engage in space activities. The
discussed herein, for actors on the basic justifications are different among
international scene. countries at different times. For instance, the
“space race” between the U.S. and the Soviet
Given the growing diversity and heterogeneity Union was mainly driven by the willingness to
of the international system, one of the demonstrate technological capability for
currencies of international relations is national security reasons and to promote
legitimacy in the eyes of both governments national prestige. In contrast to the two
and citizens across the world. In this context, superpowers’ space activities, European space
emblematic and ambitious space activities are activities were initially driven by scientific
an indispensable tool as it projects a high level common endeavors and motives.
of S&T capabilities and prowess used to
demonstrate national power at home and In Europe, space was originally dealt with by
abroad. With the on-going internationalization individual countries. But as early as 1959, the
and globalization of space affairs, no country results of Europe’s nuclear research facility
will be regarded as a world power, or remain a (The European Organization for Nuclear
world power, unless it possesses cutting-edge Research, know as CERN) introduced a new
and diversified space capabilities. model for space activities in Europe. 38
Subsequent discussions among European
Space affairs are a currency to judge the stakeholders led to the creation of the
standing of a state vis-à-vis neighbors and European Launcher Development
peers, and this is expected to remain so for the Organization (ELDO) in 1964, the European
foreseeable future. Consequently, the ability to Space Research Organization (ESRO) in
exercise space power will grow in importance. 1964, and the European Space Agency (ESA)
Space power alone cannot, however, ensure in 1975 by combining the two aforementioned
the attainment of political objectives. In organizations. Since then, ESA is the
conjunction with other forms of conventional intergovernmental agency responsible for
power, space power can be of strategic value coordinating the collective, multinational
and benefit. Space power is a significant European space program. 39
dimension of power
in international Space is ESA’s contribution to the development of a
relations and it is an bringing a collective European space capability is
important reality. novel fundamental. The European space sector is
Exercising space now entering a new institutional evolution
redistribution
power on the with the emergence of the European Union
international scene of power...
gives the ability to 38
Kazuto Suzuki, Policy Logics and Institutions of European
build international consensus by bringing Space Collaboration (Ashgate Publishing, 2003).
recognition, by primacy and authority, on the 39
There are several other organizations with limited
part of other members of the international responsibilities for specific collective activity, including, for
example, the European Organization for the Exploitation of
space community. Meteorological Satellites (Eumetsat) for operational
meteorology.
(EU) as a space actor. 40 The EU realized in the resolutions and endorsed by the European
1990s that space can provide support for a Parliament.
host of its activities, and that space activities
serve policy objectives and deliver substantial For Europe as a whole, independent access to
strategic, social, economic, and commercial space, space applications for the benefit of
benefits to the EU, its member states, and its citizens and governments, and space science
citizens. 41 European space activities are are the traditional reasons for engaging in
mainly conducted within a framework of space activities. But as the EU has become
collaborative space endeavors, as well as in aware of the importance of space activities for
the context of national space programs serving achieving a wide range of policy objectives,
particular political, economic, and security and as the international political significance
purposes. of space has grown, space is now taking a
high profile in the Union’s dialogues with
There is a complex intertwining of national major partners. 42 The international dimension
interests together with a growing of civilian space activities is increasingly
consciousness of the need for greater becoming a major element of the EU’s
cooperation at a continental level. The relations with third parties both to reinforce
European space landscape is split into three existing relations and to establish new
distinct levels: (1) the overall European level partnerships through its programs that include:
with the EU; (2) intergovernmental Galileo and Global Monitoring for
organizations, like ESA and the European Environment and Security (GMES); the
Organization for the Exploitation of Framework Program (FP); and space
Meteorological Satellites (Eumetsat); and (3) dialogues with the United States and Russia
national space agencies. The recent entry and other international fora (e.g., International
(December 2009) Code of Conduct for Outer Space Activities).
into force of the The rise of The space context in which Europe will
Treaty on the new space continue to operate is likely to evolve because
Functioning of the of the emergence of new space actors being
European Union
actors is both users and sources of space technology.
(TFEU), known as reshaping the This does not necessarily posit a threat to
the Lisbon Treaty, space Europe, but it needs to be reckoned with for
enshrines space landscape. the specific purpose of managing change in a
policy as an EU balanced and effective way.
“shared policy.” It gives a clear mandate to the
European Commission to exercise its right of Since the end of the Cold War, under the
reinforcing the momentum of the European influence of the overall process of
Space Policy embodied in Space Council globalization, sources and distributions of
power are being transformed in a profound
way, and multipolarity is expected to grow in
40
the future making the space context even more
Nicolas Peter, “Towards the Emergence of EU Space
Diplomacy,” Space Policy 23 (2007): 97-107.
heterogeneous. Consequently, the relative
41
In the late 1990s, the EU started its first two major space power of various emerging space actors will
programs: the global navigation satellite system, Galileo, and grow as these actors influence other countries.
the Earth observation system for Global Monitoring for
Environment and Security (GMES). These two flagship
42
programs are the cornerstones of the current EU space Nicolas Peter, “Towards the Emergence of EU Space
activities. Diplomacy,” Space Policy 23 (2007): 97-107.
This evolution will not radically alter the system), and consequently, space power is
space context as did China and India recently. essential for Europe now and in the future.
Emerging space actors will, however, have
higher degrees of freedom to shape their space The rise of new space actors is reshaping the
ties, rather than working only with the current space landscape. The U.S., Russia, and
spacefaring countries. New networks will Europe’s preeminence cannot be taken for
form among states to pursue convergent goals granted. The center-of-gravity for space
and interests, and in some cases the nucleus activities is already starting to shift from West
will not be the traditional space powers. and East to the South, and the expected rise of
Emerging space powers will also seek greater new space actors will inevitably challenge
leeway and autonomy to exert regional Europe’s position in the global “space
influence. Space has always included both hierarchy.” Those global developments will
competition and cooperation among states. entail fundamental changes to the distribution
This will not change and certain areas will not of resources and influence with the emergence
remain conducive to international cooperation. of new players forging closer ties at the
But an increasingly multipolar space order regional level, leading to a shift of power and
suggests a greater number of actors with influence. The role and position of Europe in
whom Europe and others will have to contend this emergent space context will evolve.
with. Consequently, traditional spacefaring Europe will still have a great impact on space
countries will probably find it much harder to affairs, but it might have less power in such a
set the space agenda and shape outcomes to multipolar space context than it has enjoyed in
their desired preferences. the last decades.
The new space order is becoming genuinely There is nothing preordained in the future
global and multipolar with growing strength in shape of the space context and in Europe’s
emerging economies and a growing place therein. It is a matter of political
specialization in various parts of the world decision, drawing on Europe’s comparative
leading to greater overall system complexity. strengths and ambitions, and the ability to
Legitimacy is expected to remain in the nurture and use space power more efficiently.
foreseeable future the hard currency of A scenario of relative decline in the global
international space relations, possibly the most “space hierarchy” will lead Europe to lose its
important asset to ensure long-term success of flexibility in choosing between cooperative
specific initiatives. Needless to say, unilateral options and autonomy for cooperation, as well
action will always be an option for as remain the preferred option for partnerships
spacefarers, notably in the context of national among other states. Today, given the
objectives. Yet spacefaring countries do not, benchmark of Europe’s S&T prowess, Europe
by and large, work in isolation. But the search continues to be viewed as the space partner of
for agreement in defining the international choice by existing and emerging space
space agenda might prove more complicated, powers, as well as by new entrants in the
and thus, in the new space order, partnerships space sector. For this to persist,
and cooperation will become more important multilateralism for Europe may prove as much
in confronting many of the challenges of the a necessity as a choice. Working with partners
international system. International leadership needs, nonetheless, to be turned more
and cooperation will be necessary to face explicitly and consistently into a vehicle for
global challenges (e.g., climate change and to achieving effective multilateral solutions for
engage in long-term exploration of the solar giving Europe more visibility and clout.
The management of international cooperation European space programs are successful to

must change as the geography of space date and European citizens embraced space-
develops new peaks around the globe; if based services and support into many aspects
Europe is not positioned to exploit potential of their everyday lives. Europe has achieved a
links with emerging space actors, it will face number of impressive results (e.g., world class
significant opportunity costs. But to enable launch services and telecommunications
Europe to best exploit its partnerships and industry, and numerous scientific
opportunities, a better realization of the achievements, such as the farthest landing on
benefits of space power and clear policy an object in our Solar System). Space is now
commitments will be needed to be able to enabling many activities of the European
shape the directions of those partnerships in economy and is a critical building block of
the directions of its own preferences. Europe’s information infrastructure. It could
therefore be concluded that because of this
relevance and the pervasiveness of space
Space Power and Europe activities a clear understanding of space power
exists in Europe.
Europe is now the second largest civilian
power in space in terms of its consolidated They are enormous shortcomings in Europe’s
budget. Collectively, it maintains launcher, ability to understand, develop, and exercise
satellite manufacturing, and research facilities space power. 45 There is no mention of space
in the whole spectrum of space activities power in policy or strategy documents. A
except for human spaceflight. The sound understanding of the nature and
combination of European capabilities coming exploitation of space power is, however,
from different European actors – European critical for Europe in the unfolding new space
members states, ESA, and the EU – provide order as Europe’s technical lead could be
Europe with the status of a major space rendered less important, even where it does
actor. 43 Europe possesses collectively critical not shrink, and because of the expected
technical assets (e.g., independent launch site, dilution of its voice in international fora due to
versatile launch vehicle fleet, diversified the changing space context. If Europe wishes
spacecraft, solid industry, and dynamic to retain its space power now and in the
universities) and non-technical assets, such as future, it must better protect its interests in
high visibility in international organizations, space.
like in the United Nations Committee on the
Peaceful Uses of Outer Space (UNCOPUOS), Europe currently enjoys a leading position in
International Telecommunication Union the global “space hierarchy,” but this might
(ITU), and United Nations Conference on not last, and Europe’s ability to exercise space
Disarmament (CD), which are all necessary power could decrease over time. To maintain
elements to exercise space power. 44 a leading space role and to be able to exercise
space power, Europe must foster more
43
Nicolas Peter, “Space Power and Europe in the 21st “political will” and develop associated
Century,” European Space Policy Institute Perspectives 21,
May 2009, http://www.espi.or.at/images/stories/dokumente/
policies and strategies. This further needs to
Perspectives/espi%20perspectives%2021%20.pdf (accessed be complemented by a series of programmatic
January 2010).
44
elements facilitating policy implementation.
Nicolas Peter, “Space Power and Europe, in the Need for a Access to space, a competitive industrial and
Conceptual Framework,” paper presented at the 59th
International Astronautical Congress, Glasgow, Scotland, 29
45
September - 3 October 2008. Ibid.
space services base, global navigation satellite advantage, particularly as a projection of soft
systems (GNSS), space exploration, utilitarian power. Exercising space power could, for
space activities, space science, Space instance, allow Europe to influence the
Situational Awareness (SSA), and Space drafting of international regulations, and take
Traffic Management (STM) are important the lead in strategic areas, such as
building-blocks covering the whole spectrum environmental research and space exploration;
of space activities as underlined in the it could affect as well
European Space Policy that will allow to Space affairs the development of
improve Europe’s ability to translate its space are a highly global standards and
clout into greater global influence. 46 These symbolic norms. A formalized
47
programmatic elements in combination representation utilization of space

provide Europe with greater diplomatic, power could also allow
economic, military, and cultural tools that
of power and Europe to remain a
enable Europe to face the challenges presented … national center-of-gravity in
by the evolving new space order. standing… international relations
by attracting the best
So far in Europe, space activities are justified partners to cooperate not only in space, but in
from the point of view of their use for other domains, therefore increasing the
scientific research, technological advance, and capabilities and possibilities of European
economic gains. The time is ripe for a change projects.
in the thinking on space and Europe needs to
become more aware of the political Space will play a growing role in determining
dimensions of the use of space. Decisions influence, prosperity, technological
should not be based only on costs and benefits achievements, and security in the global
in financial, technological, and economic environment of the 21st Century. If Europe
dimensions, but should also include the does not contribute significantly to space, it
political dimension of space, including space abdicates a role as a major actor in world
power. Space power is also an increasingly politics. Influence on the future of space, such
important component to Europe’s national as in the area of space governance, will be
powers, but often unnoticed. While the uses of wielded only by those who have real space
space assets as military enablers are assets and ambitions. The challenge of space
recognized in Europe, relatively no attention is can be met only with a common European
given on how space assets can be used as effort. Space affairs should also be raised to
elements of foreign policy and as tools of the highest political level in Europe – heads of
diplomacy. State and Government – to initiate major
breakthroughs.
European space assets are underestimated and
untapped for diplomatic use, and space power Quantitative and qualitative jumps in
in Europe is often an underappreciated factor. European space efforts are required to respond
Europe needs to better appreciate how its to the challenges outlined herein and harness
space assets and activities can be used to the benefits that lie ahead. Exercising greater
directly support its diplomatic goals. Space
affairs should be better used by policy-makers 47
Nicolas Peter, “Space Power and Europe in the 21st
in Europe to achieve greater diplomatic Century,” European Space Policy Institute Perspectives 21,
May 2009, http://www.espi.or.at/images/stories/dokumente/
Perspectives/espi%20perspectives%2021%20.pdf (accessed
46
space power allows Europe to protect its own making use of space activities to maintain, and
interests and strengths, while meeting the even advance, its position in the global “space
challenges of the multipolar space order hierarchy.” Europe should not create the
currently emerging. Europe’s presence in impression that it is only a follower and lose
space should translate into comparable its credibility as a reliable partner in space.
influence, which has not always been the case. Space affairs are a highly symbolic
Europe has thus to realize that space power representation of power and will undoubtedly
can provide support for a host of its activities continue to be a persuasive method of
and is a tool to serve its interests, including in demonstrating national power to the rest of the
the domain of foreign policy and soft power world.
projection.
The emerging space order will help to
determine the structures and functions of the
Conclusions international system in the next decades.
Space power will thus be key and it is very
The unprecedented changes in the last decades important that this is understood, so that it
have made the world an integrated and may be taken advantage of in the most
complex system in which space is an integral desirable and feasible way. The broader
element. From its inception during the Cold geopolitical implications of the space domain
War, space activities are driven by are directly dependent on how effective can
opportunities to serve national interests in the space power be in the “means-ends” world of
global context. With the changing geopolitics international relations. Europe needs to realize
of space and the unfolding new space order, and develop its space
linked in particular to the internationalization Europe power potential
and globalization of space activities, it is because what is at
currently
perceived that capacity in space technology stake is the future
has faded as a geopolitical factor as well as an enjoys a agenda-setting power
element of national power, especially as space leading of Europe in the
systems are more common and widespread. position in the overall international
global “space system beyond space
Nonetheless, competencies in space activities hierarchy” but affairs, its ability to
are not becoming irrelevant to a country’s
international political position. On the
this might not shape the priorities
and timing of events,
contrary, almost all developed countries, and last… and its ability to
an increasing number of developing countries, attract the best
feel it necessary to participate in space partners to be able to fully benefit from
activities and develop for economic, military, opportunities wherever these support
or prestige reasons independent space European space objectives and wider
capabilities. Space assets can help to directly European policy goals.
achieve national objectives, and because of the
close relationship between space assets and European governments must accept the fact
national power many states seek to improve that Europe’s future role and influence in
and advance their space capabilities. world politics and in global markets may
largely depend on Europe’s capacity and
In this context, Europe should avoid being willingness to use space to develop the
surpassed in the emerging new space order by necessary technology and to build the required
industrial infrastructure. Europe cannot afford

to remain vague about its objectives in the
new space order. A strategic reflection on the
values, interests, and goals of Europe’s space
power in the context of its relations with other
countries is needed.
There are many impediments the European

space community must overcome to create an
environment where space power is valued,
accepted, and institutionalized. In particular,
European space stakeholders have not, up-to-
now, addressed the task of developing an
integrated strategy for harnessing the benefits
of space power on the international scene. The
nexus between common values and common
interest must be better articulated and in
Europe they are all too often disjointed. In
order for space power to reach its full
potential in Europe and provide greater
benefits, space must be recognized as a
domain with direct and indirect implications
for Europe, particularly at the foreign policy
level, which is in a strategic sense no different
from land, sea, and air mediums.
Europe and Security Issues in Space:
The Institutional Setting
Frans von der Dunk

Professor of Space Law, Space and Telecommunications Law Program, University of Nebraska-Lincoln
In the current timeframe, the relevance of the security perspective rather than from the
discussions on the existing use of space for space perspective. 3
national security purposes and the potential of
it to be used for non-peaceful purposes are Even the European Community, as the most
clearly increasing. 1 As a consequence, it tightly developed “pillar” of the EU, could not
becomes more important to address the role of be considered a supranational entity let alone a
Europe as a geopolitical, albeit far from federal state. In all cases therefore, the
monolithic, entity in this context. individual member states of those
organizations are still relevant as players in
From this perspective, the present paper their own right. These states continue to be
analyzes some of the fundamental institutional essential to determining the shape of European
parameters shaping the European presence in actions and approaches in the field of space
the space security domain, focusing on the issues, and this is even truer for the security
two key players in space, which are truly domain.
European, the European Space Agency (ESA)
and the European Union (EU). 2 Interestingly, The resulting complicated institutional
the starting point for both entities was that the landscape represents the backdrop against
security domain was a “no-go” area, a starting which, as well as a set of crucial parameters
point that only over the last two decades has within which, European policies in the area of
begun to erode. That is why, in addition the space are developed. This applies to the space
Western European Union (WEU), Europe has security domain, whether one takes a broad
a certain role in this context, precisely from approach as with Space Situational Awareness
(SSA) and the handling of space debris, or a
more limited one, focusing on international
terrorism or the handling of export controls
over dual-use sensitive goods. 4
1
Note that the Treaty on Principles Governing the Activities
of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies (hereafter, Outer Space
Treaty or OST) only requires states to refrain from orbiting or
otherwise placing weapons of mass destruction in orbit, as
well as to undertake activities in exploring and using outer
space “for the benefit and in the interests of all countries.”
3
The phrase of “peaceful purposes” is only applied explicitly The Western European Union was established by means of
to the Moon and other celestial bodies. the Treaty of Economic, Social, and Cultural Collaboration
2
ESA was established by means of the Convention for the and Collective Self-Defense, Brussels, entered into force 25
Establishment of a European Space Agency (hereafter, ESA August 1948.
4
Convention); and the EU, as an overarching institutional See Frans von der Dunk, “A European “Equivalent” to
structure encompassing in particular the European United States Export Controls: European Law on the Control
Community, was established by the Treaty on European of International Trade in Dual-Use Space Technologies,”
Union. Astropolitics 7 (2009): 110.
72 Frans von der Dunk/Europe and Security Issues in Space: The Institutional Setting
The European Space Agency political commitment to develop a coordinated

policy, not for establishing legal obligations
The starting point for understanding the between the two parties regarding cooperation
present and potential role of ESA in the wider activities, either in general or in particular, and
context of European space security the high-level space policy group plays its role
discussions is provided by the general in exactly that context.
institutional structure of the Agency. ESA,
headquartered in Paris, France, but with The Framework Agreement increased
additional establishments in a handful of other coordination and cooperation in policy matters
European countries, currently counts eighteen and may well lead to the establishment of
member states. 5 Thus, it clearly constitutes an proper legal commitments of one party to the
intergovernmental organization in the classical other, and/or official resignation of certain
public international legal sense of the word. legal competences in deference to the other’s
competences at some point in the future.
Given the complexities of European Presently, however, ESA is neither an agency
integration, ESA has, as of yet, no formal of the EU nor legally subject to the extended
relationship with the EU beyond a number of legal regime developed on the basis of the
cooperative agreements, of which the European Community (EC) Treaty – and it
Framework Agreement is the most generic does not even count the same European states
and broad one. 6 The Framework Agreement as members – e.g., ESA member states
does establish a joint EU-ESA Space Council, Norway and Switzerland are not members of
but this Council’s competences remain the EU and eleven EU member states as of yet
confined to “the coordination and facilitation are not member states of ESA.
of cooperative activities” under the
Agreement, and thus present a forum for ESA has two main organs. First, there is the
consultation and coordination of joint Council, consisting of representatives of the
activities, not a means to impose such joint sovereign member states, often at Ministerial
activities upon one or the other party. 7 From level, and acting as the supreme body of the
the same perspective, the joint EU-ESA organization. The Council is tasked to lead:
European Space Policy of April 2007 is a the annual work plans of the Agency; the
annual general budget of the Agency; each
5
The list of member states comprises: Austria, Belgium, the program budget; the financial regulations and
Czech Republic, Denmark, Finland, France, Germany, all other financial arrangements of the
Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Agency; decisions on the admission of new
Portugal, Spain, Sweden, Switzerland, and the United
Kingdom. In addition, non-European Canada is a long-
member states; and all other measures
standing cooperating partner under a special agreement, necessary for the fulfillment of the purpose of
whereas Hungary, Romania, and Poland qualify as European the Agency within the framework of the ESA
Cooperating States under another special agreement.
6
Framework Agreement Between the European Community
Convention. 8 In other words, the Council, and
and the European Space Agency (hereafter Framework thereby ESA, has not, at the highest level, the
Agreement), entered into force 28 May 2004. See further formal competence to draft space policies – it
Stephen Hobe, et al, A New Chapter for Europe in Space,”
Zeitschrift für Luft- und Weltraumrecht I: 54 (2005): 342-344.
is only charged with “elaborating and
7
Article 8(1), Framework Agreement. See also Article 2(1), implementing a long-term European space
providing for cooperation to take place “with due regard to policy” by means of the exercise amongst
their respective tasks and responsibilities;” Article 4(1),
calling for “compliance with its own prerogatives, legal
instruments, and procedures” of each party; and Article 5,
8
detailing the way joint initiatives could be undertaken. See Article XI(5), ESA Convention.
others of such competencies as enumerated The key to further understanding the proper
above. 9 role of ESA in the shaping of European
policies and regulations relevant to space
Second, the ESA Director General (DG) security therefore lies in the way in which
together with other ESA staff does not ESA space programs are developed. Program
constitute a policy-making organ formally development, generally speaking, can be one
speaking. The DG is tasked to manage the of three kinds.
Agency and execute any such programs “in
accordance with the directives issued by the Firstly, there are the “mandatory activities,” in
Council” as well as being entitled to submit which all ESA member states are obligated to
proposals for future programs and projects. 10 participate in. To approve a relevant proposal,
As to that latter competence, the actual impact to undertake an ESA program, and to establish
the DG may have on the formulation of it as a mandatory activity, a simple majority of
programs and projects, and perhaps informally the member states is required. However, the
and/or indirectly of policies, depends upon a level of resources to be made available for that
number of interlocking factors of a non-legal program requires unanimity, which allows
nature. Yet that impact would be subject to individual states to exert considerable power
confirmation and a form of high-level control on the overall process of making a program
by the Council as enshrined in the latter’s happen or not. 12
competencies and thus by ESA member states
jointly. Mandatory activities concern the execution of
basic activities, such as education,
ESA’s general aims and purposes are documentation, studies of future projects,
summarized by the ESA Convention “to research work, and scientific programs
provide for and to promote, for exclusively including satellites and other space systems.
peaceful purposes, cooperation among To the extent follow-up activities on the
European States in space research and ground are concerned, ESA should “collect
technology and their space applications, with a relevant information and disseminate it to
view to their being used for scientific purposes Member States, draw attention to gaps and
and for operational space applications duplication, and provide advice and assistance
systems.” 11 For good reason, ESA has often for the harmonization of international and
been described as a vehicle for member states national programs.” 13 Further to the
to both serve their individual space policy mandatory character of the participation of all
needs, where applicable, and try and establish member states in these scientific, non-space
a European space policy. Formally speaking, activities, the financing of such activities once
as discussed, the Council in using its properly agreed is taking place through a pre-
competencies decides more on programs and determined scale of respective contributions. 14
projects, even if at a high-level, and thus gives
substance and shape to policies largely
emanating at the member state level.
12
See Ibid., Article XI(5.a), sub-paragraphs (i), (ii) and (iii).
13
Ibid., Article V(1.a), sub-paragraphs (i), (ii) and (iii). See
further Kevin Madders, A New Force at a New Frontier:
Europe’s Development in the Space Field of Its Main Actors,
9
Ibid., Article II(a). Policies, Law and Activities from its Beginnings up to the
10
See Ibid., Article XII(1.b). Present (Cambridge University Press, 1997), 189, 223-235.
11 14
Ibid., Article II. See Ibid., Article XIII(1).
Secondly, ESA member states may agree on monetary terms, programs with an optional
“optional activities” – again by a simple character have made up 80% to 85% of the
majority. 15 The optional character then activities developed by ESA itself, as opposed
manifests itself by way of an opt-out clause, as to 15% to 20% being mandatory in nature. 19
it is provided that “all Member States
participate apart from those that formally Many of the details of how programs are
declare themselves not interested in developed and executed follow from what is
participating therein.” 16 This results in the labeled “the industrial policy which the
clear possibility for a member state, if it Agency is to elaborate and apply” as part of
considers it not to be in its own interests, the broader aims and objectives under Article
including security interests, to abstain from II of the ESA Convention, and Annex V,
participation in ESA optional activities. which elaborates that generic industrial
policy. 20
Optional activities also result in a different
schedule for financing. Whereas the formula These cornerstones of ESA industrial policy
here is an opt-out from the standard rule of are implemented by means of the
financing in proportion to the average national “geographical distribution” approach, to
income over the most recent three years for “ensure that all Member States participate in
mandatory programs, 17 in actual practice an equitable manner, having regard to their
things turn out to work differently. Normally, financial contribution.” 21 The result of that
individual member state contributions are approach, further elaborated in Annex V to the
decided from the ground up, i.e., each state ESA Convention, is often labeled “fair
promises as following from its own particular return,” “industrial return,” or “juste retour.”
measure of interests in such activities to Under juste retour, each member state should
contribute a certain percentage to the proposed roughly see its investment in a particular
budget of a certain program. Once the program “returned” in the form of contracts
proposed optional program reaches a certain for its space industry, preferably for the very
threshold in terms of promised financing it is program at issue, in the alternative as
formally accepted as an ESA optional compensated by contracts in other programs. 22
program.
Optional activities concern in particular the

space programs, as opposed to preparation for
Beginnings up to the Present (Cambridge University Press,
them and their after-mission interpretation and 1997), 189-195, 235.
usage: “the design, development, construction, 19
See Kevin Madders cited above, 189.
launching, placing in orbit, and control of 20
Ibid., Article VII(1).
21
satellites and other space systems; and the 22
Ibid., Article VII(1.c).
design, development, construction, and See Ibid., Articles II, IV, and Annex V. While the ideal
“overall return coefficient” [Article IV(3)] implies that every
operation of launch facilities and space Euro contributed by a member state should be matched
transport systems.” 18 Over the years, in exactly by a Euro’s worth of contract value for a company
from that member state under a contract by the Agency, there
15 are a number of complicated arrangements in place to allow
See Ibid., Article XI(5.c), sub-paragraph (i). for considerable flexibility. See further Madders, 384-8.
16
Ibid, Article V(1). Moreover, due to pressure from the EU in recent years, which
17
See Ibid., Article XIII(2). views this system with some suspicion, as it may easily have
18
Ibid., Article V(1.b). See further Kevin Madders, A New anti-competitive effects within the European market, the
Force at a New Frontier: Europe’s Development in the Space general application of the concept has become more relaxed
Field of Its Main Actors, Policies, Law and Activities from its still.
The dichotomy between mandatory and ESA Involvement

optional activities has, throughout the decades in Space Security Issues
of ESA operations, been shown to work as a
remarkably pragmatic and workable While as of yet not addressing to any specific
compromise. It allows at the same time extent the actual or possible role of ESA in
respect for the need for states to maintain their shaping European space security issues, in
sovereign independence in choosing to general terms, the possibility to become so
contribute to and participate in actual space involved at various levels depends on the
programs – on an á la carte-basis as it were – interest of individual ESA member states. In
and serving the need for some coherence in particular, the major investors in ESA and
ESA programs, in order for ESA to provide ESA programs – France, Germany, Italy, the
any added value in terms of real cooperation United Kingdom, and Spain – need to possess
and an efficient pooling of resources. the political will and wherewithal in having
ESA become so involved.
The ESA Convention mentions a third
category of activities, one not as such Article II of the ESA Convention underscores
conjured up by or within the framework of the this point, stressing that ESA activities should
Agency itself, but undertaken upon the be for “exclusively peaceful purposes.” To
specific request of third parties, namely start with, the general discussion during the
“operational activities.” 23 As a consequence, Cold War on the precise meaning of “peaceful
these activities are not financed by the normal purposes” is important to consider as this
budget of ESA, but paid for, in principle on a phrase was – with the same addition of
full-cost, not-for-profit basis, 24 by the state, “exclusively” – found in the outer space
organization, or entity requesting such treaties. 26 Here, European states were inclined
services. 25 to occupy the middle ground between the
liberal United States (U.S.) interpretation that
peaceful purposes included military purposes
23
as long as of a defensive nature and the stricter
See Ibid., Article V(2).
24
Such a monetary reimbursement could of course be
Soviet interpretation that any military use of
(partially or completely) waived to the extent ESA considers outer space was prohibited under that concept.
other interests to merit the provision of such service without
(full) reimbursement, and/or ESA considers itself de facto
reimbursed by in-kind compensation. For example in the
The word “exclusively” constitutes an
context of the International Space Station (ISS), it is common interesting addition here; prima facie it
practice that the partners exchange services and goods as suggests that without that addition ESA would
much as possible on a closed-purse, no-exchange-of-funds
basis. See Article 15(5), Agreement among the Government of
also be entitled to act not for peaceful
Canada, Governments of Member States of the European purposes. If that were to be true, however, the
Space Agency, the Government of Japan, the Government of phrase “peaceful purposes” without that
the Russian Federation, and the Government of the United
States of America concerning Cooperation on the Civil
addition would be devoid of any meaning –
International Space Station, Washington, entered into force essentially stating that ESA would be entitled
27 March 2001.
25
to conduct activities for peaceful purposes
In the past, ESA has provided such services for individual whilst leaving it open to also conduct non-
states, other international organizations, such as the European
Organization for the Exploitation of Meteorological Satellites
26
(EUMETSAT), established by the Convention for the See Article IV, Outer Space Treaty, also Article XI referring
Establishment of a European Organization for the to “peaceful exploration and use;” and Article 3(1),
Exploitation of Meteorological Satellites entered into force 19 Agreement Governing the Activities of States on the Moon
June 1986, as amended 14 July 1994, and entered into force and Other Celestial Bodies (hereafter Moon Agreement),
27 July 1994, and private companies, such as Arianespace. entered into force 11 July 1984.
peaceful activities, since the addition of following a majority vote by the member
“exclusive” would be considered necessary to states in the ESA Council on the program plus
close the door on the latter option. unanimity on the financing, and this would
ensure that no ESA project would see the light
In other words: the addition of “exclusively” of day unless member states were satisfied it
does not effectively add anything to the legal would not unduly interfere with their
obligation, and should rather be understood as sovereign security concerns, including
a politically-driven confirmation of an compliance with their own understanding of
obligation already existing as regard to “peaceful purposes.” Only with the projects of
“peaceful obligations,” to make sure no Galileo and Global Monitoring for
misunderstanding would arise on the scope of Environment and Security (GMES) to be
ESA’s activities. ESA did not wish to discussed below, that started to change
antagonize the U.S. by contradicting its liberal fundamentally, due as well to the role of the
interpretation, yet at the same time was not EU with these projects – and then still only so
willing to allow any uncertainty regarding the far as those member states allowed.
legal inability of ESA to get involved in
military and security-related space projects. Further to that, ESA from the beginning could
Copying the adverb “exclusively” from the not completely escape from the inevitable
space treaties and inserting it in the ESA relationship between space activities and the
Convention precisely achieved both results issue of security. Satellite-based Earth
simultaneously. observation can without difficulty encompass
“spying,” the difference between launching a
Following the Framework Agreement, even as missile and launching a payload is often
this agreement did not refer in any manner to negligible from the technical perspective and
space activities with a security, defense, the high-technology character and global
and/or military component, ESA has gradually scope of much of human spaceflight
adopted a more liberal interpretation. 27 At endeavors inevitably causes it to have
least the word “security” is no longer taboo important security angles. As such, the ESA
now: an ESA Security Agreement, ESA framework has had to deal with security-
Security regulations, and an ESA Security sensitive aspects of its “exclusively peaceful”
office were established, as was an ESA mandate.
security classification system with an “ESA
Secret” label where handling of relevant For example, in deviation from the normal
classified information was moved from the requirement to exchange data on programs,
member states to ESA itself. until the aforementioned recent establishment
of an ESA Secret label, ESA member states
But as ESA re-interpreted “peaceful purposes” were not required “to communicate any
in 2003 to mean it could unambiguously be information obtained outside the Agency” if
involved in military and defense related such communication would present a threat to
security activities, the aforementioned its national security, would be inconsistent
institutional structure remains in operation. with its agreements with third parties, such as
ESA programs could only become a reality non-ESA partners in space cooperation
ventures, or would be inconsistent with the
27 terms and conditions under which it had
See European Space Agency Council, “Position Paper on
ESA and the Defense Sector,” ESA/C 153 (1 December
2003): 7-8.
obtained the information at issue in the first very thin lines among a vehicle for launching,
place. 28 an explosive payload against a terrestrial
target, and a vehicle for delivering a peaceful
Along similar lines, a fundamental payload in orbit. Not accidentally, this area
technology-transfer control limitation was was the first to be subject to international,
built into the ESA Convention. If technology albeit largely voluntary, arrangements – the
or products developed in the context of ESA Missile Technology Control Regime
activities are to be transferred to non-ESA (MTCR) 33 – to try and curb the proliferation
member states, a special authorization regime of relevant technologies outside the circle of
to be adopted by a two-thirds majority of former Western allies.
member states in the ESA Council is required,
ensuring that such authorization will not be As long as the Ariane launcher development
lightly provided. 29 project was an (optional) ESA program, the
exclusively peaceful requirement of Article II
In more general terms, not only the of the ESA Convention precluded any Ariane
implementation of new programs, but also the vehicle being used for military or other
admission of new member states to the security-related missions, under the European
Agency requires a unanimous vote in favor by interpretation discussed before. Once the
the incumbent member states in the ESA Ariane vehicle, however, had achieved
Council. 30 This is a common provision in the operational status, i.e., could start to be used
charters of intergovernmental organizations, for regular flights on a commercial basis, ESA
but in the present context it serves to had to outsource operational and marketing
scrutinize any potential new member from the activities, as ESA was also limited by its
perspective of security risks, since once such a Convention to research and development
state becomes a member it would be entitled (R&D), even if those terms were sometimes
to the default paradigm of free flow and stretched considerably. 34
exchange of relevant information on ESA
programs, technology, and products. 31 For In the case of Ariane, a separate private and
similar reasons, unanimity in the ESA Council commercial entity was established in 1980
is required before ESA may cooperate and called Arianespace. 35 Arianespace is a French
conclude relevant agreements with other company with international shareholding as
intergovernmental organizations, non-EU well as ties with ESA and the ESA member
governments, and other non-ESA member states, but nevertheless operating on its own
state institutions. 32 behalf in the emerging global commercial
A final example of ESA’s involvement in

33
security issues concerns the development of Agreement on Guidelines for the Transfer of Equipment and
Technology Related to Missiles (hereafter MTCR), done 16
the Ariane launcher. The single-most security- April 1987. Also, See Elisabeth S. Waldrop, “Integration of
sensitive space sector is the production and Military and Civilian Space Assets: Legal and National
operation of launch vehicles, in view of the Security Implications,” Air Force Law Review 55 (2004):
189-90; and Frans von der Dunk, “A European “Equivalent”
to United States Export Controls: European Law on the
28
Control of International Trade in Dual-Use Space
Article III(1), ESA Convention. Technologies,” Astropolitics 7 (2009). All current 18 ESA
29
See Ibid., Article XI(5.j). member states are among the 34 state parties of the MTCR.
30 34
See Ibid., Articles XI(5.k), XXII. Article II, ESA Convention.
31 35
See Ibid., Article III in extenso. Statuts de la Société Arianespace (Arianespace Statute), 26
32
See Ibid., Article XIV(1). March 1980.
launch services market. Its operations, Treaty Organization (NATO) regime 41 for
however, from the international space law controlling security-sensitive exports,
perspective, remained under control of the Arianespace fell under French governmental
ESA member states, by way of a complicated control.
international legal structure with three
documents at the core: the Arianespace Thus, even the areas where the exclusively
Declaration, 36 the Arianespace Convention, 37 peaceful mandate for ESA could not as such
and the Centre Spatial Guyanais (CSG) avoid a possible entanglement in security or
Agreement. 38 Under the first two documents, military issues, control mechanisms and
Arianespace is obliged to operate strictly for procedures were in place. These mechanisms
peaceful purposes. 39 and procedures ensure that the potential
threats to the security of individual member
Yet as a private French company, Arianespace states emanating from such entanglement
remained under French governmental control. continue to be addressed without substantially
For example, prior to the MTCR, for the infringing their sovereignty.
purpose of adhering to the Coordinating
Committee on Multilateral Export Controls
(CoCom) rules, 40 i.e., the North Atlantic The European Union
The involvement in space and space policy

issues, including space security, of the EU, as
36
Declaration by Certain European Governments Relating to
the successor at a political, if not completely
the Ariane Launcher Production Phase (hereafter at the legal level, of the European Community,
Arianespace Declaration), entered into force 15 October 1981, stems from a completely different background
renewal as of 4 October 1990, entered into force 21 May
1992.
compared to that of ESA. The Community,
37
Convention between the European Space Agency and then Union became involved in European
Arianespace (hereafter Arianespace Convention), signed 24 space activities and related policy issues
September 1992. primarily as a regulator, and has only recently
38
Agreement between the French government and the
European Space Agency with respect to the Centre Spatial
become a player in its own right, even a
Guyanais (CSG) (hereinafter CSG Agreement). See excerpts policy-maker – but this remains a secondary
of French version in ESA Bulletin 80 (November 1994): 67.
39
role.
See Articles I.1.2(a), I.1.6(a), Arianespace Declaration,
ESA/C(80)8, 11 January 1980; Articles 6.1, 6.2, and 6.3,
Arianespace Convention, ESA/C(80)WP/8, rev.4, 18 In spite of efforts to arrive at a European space
November 1980; further see John Kriger, Arturo Russo, and policy, 42 driven by the European
Lorenza Sebesta, A History of the European Space Agency
1958-1987: Volume II: The Story of ESA, 1973 to 1987, ESA
Commission’s perception that space is a key
History Study Reports, SP-1235 (ESA Publications, 2000); sector to the future of Europe, in this area (as
and Gabriel Lafferranderie and Harry Tuinder, “The Role of
ESA in the Evolution of Space Law,” Journal of Space Law
41
22 (1994): 103. NATO was established by the North Atlantic Treaty,
40
CoCom was established in 1949 as a joint organization of entered into force 24 August 1949.
42
the member states of NATO, Japan, and Australia, to prevent See White paper: Space: a new European frontier for an
the sale of weapons and technology to the Soviet Union and expanding Union – An action plan for implementing the
its communist allies. CoCom was disbanded in 1994, European Space policy, COM(2003) 673 final, of 11
following the dissolution of the Soviet Union in 1991 and the November 2003; Communication from the Commission to the
concurring de facto end of the Cold War, which inter alia Council and the European Parliament – European Space
resulted in the opening up in principle of Russian and Eastern Policy – Preliminary Elements, COM(2005) 208 final, of 23
European markets. See Michael Lipson, “The Reincarnation May 2005. See further Stephen Hobe, et al, “A New Chapter
of CoCom: Explaining Post-Cold War Export Controls,” The for Europe in Space,” Zeitschrift für Luft- und Weltraumrecht
Non-Proliferation Review 6 (1999): 33-51. I: 54 (2005): 340.
in many others) the ultimate prerogative of follow-on legislative measures. 47 The treaties
giving substantial shape to space policies by also provided these organs with extensive
implementing actual programs and projects legal competences, which they then used to
rests with the individual, sovereign member jointly extend the scope of EU law immensely
states. As referred to earlier, a joint Space – by drafting and enunciating what is
Policy has been accepted recently, in 2007. commonly called “secondary EU law.”
This is clearly only a first step for the EU, Secondary EU law is composed of
whereas the second, more important step of Regulations, Directives, and Decisions. 48
being in charge of implementing such a space Regulations are essentially laws on a
policy, of being able to force unwilling or European level: they are phrased in general
conflicting national authorities in terms of terms and apply comprehensively, at least as
their own space policies, and of developing its far as indicated or expressly provided for by
own space projects on its own behalf, is only the Regulations themselves. The same
beginning to be undertaken with Galileo. qualification as law applies to Directives to
Currently, the first contracts for building of some extent, namely as far as the required end
the Galileo satellites and deployment of the result is concerned: each state is free,
system have been signed. however, to reach that end result in whatever
way it sees fit, prior to a given deadline.
A distinct and partly supranational legal order Finally, Decisions also provide binding law,
has by now emerged, where in many instances but only upon those entities to which they are
the EU can in law override the interests, explicitly or implicitly directed. In each case,
policies, and even legislation of individual they would override, wherever applicable,
member states, yet in the last resort all that is national law or regulation to the contrary.
still based on a number of treaties between
sovereign states. Together these treaties form At the same time, they are strictly legal
a body of primary EU law, inter alia creating instruments, designed and only to be used to
the main Union organs, officially referred to implement and enforce higher-level policies,
as: the Council (of Ministers),43 the European policy interests, and approaches as agreed by
Commission, 44 the European Parliament, 45 the the EU with the Council, representing the
European Court of Justice, 46 and most recently interests of the individual member states,
augmented by a European Council comprised generally in a key role, not to develop and
of heads of state and government entitled to determine them. Not even the Treaty of
develop policies – but based on consensus, Lisbon, the successor of the ill-fated effort to
and without being formally entitled to guide achieve a Constitution for Europe, 49 which
had been hailed as the first document
providing the EU with formal competence in
matters of space and space activities, was to
43
See Articles 227-243, Treaty Establishing the European fundamentally change this situation. In
Community as Amended by the Treaty of Lisbon Amending consequence, the Union still pools together the
the Treaty on European Union and the Treaty Establishing the
European Community (hereafter Treaty on the Functioning of
the European Union), entered into force 1 December 2009.
44 47
See Articles 244-250, Treaty on the Functioning of the Ibid., Articles 235-236: see Articles 13(1), 15, Treaty on
European Union. European Union as amended by the Treaty of Lisbon.
45 48
See Ibid., Articles 223-234. See Ibid., Article 288.
46 49
See Ibid., Articles 251-281: meanwhile renamed Court of Treaty Establishing a Constitution for Europe, Rome, done
Justice of the European Union. 29 October 2004 and not entered into force.
regulatory efforts of the member states for the Treaty of Nice of 2001, 57 and the Treaty of
specific purposes indicated in the relevant Lisbon of 2007. Of these, as we shall see for
treaties and essentially limited to those – even our space related topic, the Treaty on
as it established its own distinct legal order; a European Union and the Treaty of Lisbon are
sui generis-construction, which may be the most important.
referred to as a supranational “half-way
house” between an international organization
and a federation-like structure. At present, The European Union Legal Framework,
twenty-seven European states 50 have thus Economic Activities, and Outer Space
subjected themselves to a very extensive set of
rights and obligations towards each other in The essential elements of the Union’s legal
the framework of the EU. As pointed out, this order referred to above present the EU with its
concerned a group of European states different own measure of competencies and jurisdiction
from those interested in space and investing – over a wide range of economic or economy-
therein to become member of ESA. related activities. Depending upon certain
circumstances and legal preconditions, they
The European legal framework was initially can be directly applied not only to the member
built through signature and ratification of the states themselves, but also to private persons
European Coal and Steel Community (ECSC) and entities resorting under the domestic
Treaty, 51 the European Atomic Energy jurisdictions of these member states. In
Community (EAEC) or Euratom Treaty, 52 and addition, in a number of cases the rights and
the European Economic Community (EEC) obligations directly applicable to individual
Treaty 53 all in the 1950s, as duly amended by citizens and legal entities can also be claimed
subsequent treaties in later years. Such treaties directly by those entities. Bypassing domestic
included, in addition to the various accession jurisdictions of member states, the Court of
treaties allowing for new member states to Justice can be called upon in a number of
join the EC, then Union, the Single European instances by those concerned to judge upon
Act of 1986, 54 the Treaty on European Union the legality of EU as well as national actions.
of 1992, 55 the Treaty of Amsterdam of 1997, 56 The existence of this body central to the EU
legal order represents an essential measure of
50
The list of member states comprises: Austria, Belgium, supranational adjudication.
Bulgaria, the Czech Republic, Cyprus, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, As such, to what extent do the Union and its
Latvia, Lithuania, Luxembourg, Malta, the Netherlands,
Poland, Portugal, Romania, Slovakia, Slovenia, Spain,
legal framework affect the space sector?
Sweden, and the United Kingdom. Special as space is and distinct from and
51
Treaty Establishing the European Coal and Steel outside specific member state involvement,
Community, entered into force 23 July 1952.
52 how would or could the EU expand such
Treaty Establishing the European Atomic Energy
Community, entered into force 1 January 1958.
53
Treaty of Rome, or Treaty Establishing the European
Economic Community (hereafter EEC Treaty), entered into
56
force 1 January 1958. Treaty of Amsterdam Amending the Treaty on European
54
Single European Act, entered into force 1 July 1987. One Union, the Treaties Establishing the European Communities
major result of the Single European Act was the integration of and Certain Related Acts (hereafter Treaty of Amsterdam),
the main institutions of the Communities concerned, in entered into force 1 May 1999.
57
particular the European Commission and the Council of Treaty of Nice Amending the Treaty on European Union,
Ministers. the Treaties Establishing the European Communities and
55
Treaty on European Union, entered into force 1 November Certain Related Acts (hereafter Treaty of Nice), entered into
1993. force 1 February 2003.
impact to the extent considered necessary for EU competencies and jurisdiction have been
the European greater common good? generally acknowledged in the economic
domain, applying to all economic activities
The answers to these questions lie in proper, i.e., without overriding public
understanding how the aforementioned interests, such as those relating to military,
competencies and jurisdictions are applied to social, or cultural issues being behind those
concrete issues – the application has to be economic activities. Consequently, space
made by explicit primary EU law, secondary activities do at least fall within the EU legal
EU law (much more common), or from EU order to the extent that they may be
law no other conclusion can be drawn other considered economic activities.
than such applicability was implied. This is
captured by the notion of “subsidiarity,” 58 From such a perspective, the general
which means that unless the competence to application of EU law to economic activities is
legislate on a certain issue has unequivocally, the main instrument for Union involvement in
even if only implicitly, been transferred to the the space sector so far. Here, the central and
Union’s organs the relevant power should still most comprehensive aim of EU economic
be deemed to rest with the national integration is the creation and maintenance of
governmental authorities. If doubt arises a common market. 60 Effectively, the Internal
whether an issue could be regulated more Market, being one side of the common market,
effectively and logically at the European level was established as of 1993 following the entry
or at the national level, the presumption under into force of the Treaty on European Union. 61
subsidiarity is that the national level should This regime, in turn, is based upon several
prevail. freedoms: the freedoms of movement of
goods, persons, services, and capital; 62 an anti-
In practice, only to the extent that space- trust regime combating anti-competitive
related activities are unequivocally covered by behavior of governments (state aid) and
provisions in primary or secondary EU law, companies (collusive conduct and abuses of
can any competence to legislate with respect dominant positions) alike; 63 and
to them be exercised by EU organs. Space harmonization of relevant national
activities, however, only constitute one among legislation. 64
many topics from the Union’s perspective.
Hence, they were hardly mentioned explicitly Turning back to space activities from the
in primary EU law and not in any appreciable perspective of how policies take shape within
detail in secondary law. As we shall see, space the EU, the Union’s organs, in particular the
has only recently achieved some presence and Commission, have over time obtained some
prominence in that context. 59 Concomitantly, freedom to draft, or at least prepare, European
58
Articles 5(1) and 5(3), Treaty on European Union as
Europe’s Development in the Space Field of Its Main Actors,
Amended by the Treaty of Lisbon. The latter thus extended the
Policies, Law and Activities from its Beginnings up to the
scope of application of the subsidiarity principle from the
Present (Cambridge University Press, 1997), 566-584.
Community’s actions (where it applied since 1993 under 60
Article 5, EC Treaty as amended by the Treaty on European See Articles 3, 4(2.a), Treaty on the Functioning of the
Union) to all actions taken in the name of the Union. European Union.
61
59
For an excellent recent account of EU involvement in Articles 13-19, Single European Act.
62
European space activities, see Imgard Marboe, “National See Articles 28-37, 45-66, Treaty on the Functioning of the
Space Legislation: The European Perspective,” Nationales European Union.
63
Weltraumrecht – National Space Law (2008), 31-46; Further, See Ibid., Articles 101-109.
64
see Kevin Madders, A New Force at a New Frontier: See Ibid., Articles 114-118.
policies, through such varying non-binding completely different context and for rather
instruments as Resolutions, White Papers, and different purposes than ESA, essentially the
Green Papers. 65 Yet, even with the 2007 EU- same limitations to EC/EU action in the field
ESA Space Policy the boundaries of that of security followed from the established aims
freedom are always those provided by the of its activities and institutional structure. As
body of EU law, and the political will of the to the former, the aims of the EC were
totality of EU member states to use their summed up exhaustively in the
prerogatives, in particular through the aforementioned Article 2 of the EC Treaty,
Council, to allow any such policy initiative, to which throughout history has been updated to
condition or control it, or even to obstruct it. take into account new developments requiring
Certainly, once a policy initiative is translated a European-level competence – and so far had
into new EU law, the Council of Ministers in always excluded a reference to military,
its interplay with the Commission, the defense, and security issues. The only
European Parliament, and the Court of Justice conclusion can be that this domain as a
are able to control such a process to a large generic area has not yet been included within
extent. 66 the EU competence. 67 Only with the Treaty of
Lisbon that has changed to some extent, as we
shall see.
European Union Involvement
in Security Issues Even though the European Commission as a
truly European organ has in principle the right
It should not be a surprise that as a to initiate policy and legislative developments,
consequence of the above discussion, at least and the European Parliament as another truly
until as recently as two decades ago, the European organ has considerable competence
European organs were given very little room in both as well, at
to address military, defense, and security Cooperation on the end of the day
issues, whether specifically in terms of space military and this supranational
or more generally speaking. Although the EC, security competence only
then Union, as indicated originated in a issues…does extends precisely to
those domains
take place, but falling within the
65
The earliest such document relevant for space activities was ultimately, EU sphere as
“Towards Europe-wide systems and services” – Green Paper
on a common approach in the field of satellite Europe states determined, until
communications in the European Community, still preferred to very recently, by
Communication from the Commission, COM(90) 490 final,
of 20 November 1990. For further discussion of the rely on Article 2 of the EC
development of an EU-driven space policy, see Gunther themselves for Treaty. Extending
Verheugen, “Europe’s space plans and opportunities for the scope of that
cooperation,” Space Policy 21 (2005), 93-95; Thomas Reuter, national sphere in any
“The Framework Agreement between the European Space
Agency and the European Community: A Significant Step
security. formal sense
Forward?,” Zeitschrift für Luft- und Weltraumrecht 53 (2004), requires the consent
56-65; Kevin Madders and Walter Thiebaut, “Carpe diem:
Europe must make a genuine space policy now,” Space Policy
of the Council of Ministers representing the
23 (2007): 7-12; and Nicolas Peter, “The EU’s emergent
67
space diplomacy,” Space Policy 23 (2007): 97-107. Note that the aforementioned subsidiarity principle
66
See Articles 293-294, Treaty on the Functioning of the specifically calls for either explicit or implicit (but then from
European Union, providing the basis for the complicated a logical perspective irrefutable) transfer of competence to the
decision-making processes formally applicable to the EC/EU level, as argued on the basis of subsidiarity before
development of EC law. such competence may be assumed.
member states, or in cases of fundamental carefully into that direction, and as it turned
enlargement of EU competence even new out in some respects taking ESA along to the
treaties. extent these ambitions involved, or were
focusing on, outer space and space activities.
From the perspective of security issues, the Essentially, the EC took a three-pronged,
point of departure for European entities was staged approach: firstly, by transforming itself
the fundamental lack of reference to formally into a EU; secondly, by starting to
competencies in that area until fairly recently. address in earnest the issue of international
Security being so closely related to questions trade in security-sensitive goods and
of state sovereignty, the fact remains that in technology; and thirdly, by undertaking space
the last resort the sheer survival of the state as projects jointly with ESA that inevitably
a relevant entity is at stake, and in spite of the touched upon the security domain.
long history of political, economic, social, and
cultural integration since the Second World
War European member states have not been European Union Entrance
willing to subject themselves in any into the Space Security Arena
fundamental sense to a supranational entity.
Cooperation on military and security issues, The renaming of the Community as the Union
and the conduct of joint military exercises in-and-of-itself was an expression of the
does take place, but ultimately, Europe states ambition of the member states, and of the
still preferred to rely on themselves for European institutions, most prominently the
national security. Commission, to broaden European integration
beyond the more economically-oriented
Over the last two decades, however, partly as domains. More to the point, the Treaty on
a consequence of the end of the Cold War, the European Union effectively did extend the
demise of the Soviet Union, and the scope of European integration as it had arisen
fundamental reshaping of the geopolitical on the basis of the three treaties of the 1950s,
landscape, the perspective on European re-christening the EEC Treaty as the EC
security started to change. The undeniable Treaty, and by adding two more “pillars” of
success of the EU in economic terms –500 the EU to the three Communities that had
million inhabitants constituting the largest been merged into one Community (those
single economic block in the world – pillars of the Common Foreign and Security
strengthened European self-consciousness Policy (CFSP) and of Police and Judicial
about a major role for Europe also in the Cooperation in Criminal Matters (PJCCM)
geopolitical arena. At the same time, the lack respectively). 68
of political and security-related coherence has
become painfully clear, in particular in the Of course, it is the CFSP pillar, which
context of the demise of Yugoslavia and the concerns us here, established by means of
ensuing civil wars, where only NATO and the Articles 10A through 28 of the Treaty on
U.S. turned out to be able to restore some
measure of peace, and essentially by sheer 68
The first pillar was now that of the European Community,
military force. based not only the EC Treaty (Title II, Treaty on European
Union), but also on the ECSC and EAEC Treaties (Titles III,
The ambitions of the EC thus started to resp. IV, Treaty on European Union). For the second, CFSP
pillar, see Title V, Treaty on European Union; for the third,
address the involvement of Europe in such PJCCM pillar (originally labeled Justice and Home Affairs
security domains, and it started to move (JHA)), see Title VI, Treaty on European Union.
European Union. 69 This is where, with the Treaty on the Functioning of the European
entry into force of the Treaty on European Union; it was not changed fundamentally. 72
Union in 1993, for the first time as far as the Yet in principle, “Decisions under this Title
EC/EU framework was concerned, issues of shall be taken by the Council acting
security – the use of the words “defense” and unanimously” and there is no formal
“military” were still judiciously avoided – entitlement for the Commission to anything
could be addressed. At least the word other than being kept informed and allowed to
“security” is prominently present in the text offer its opinion. 73
now.
As a result, there also was no role for the
The CFSP, however, is a straightforward elaborate legislative, adjudicative, and
intergovernmental construction and operates enforcement jurisdiction of the European
completely outside Parliament or the Court of Justice, which was
the established legal …gradually, the developed in the context of the EC Treaty.
structure of the European The European Parliament, for instance, can
Union with its institutions…as make itself heard on similar terms as the
supranational compared to the Commission, but does not have any formal
features. There is at say in the outcome of whatever legally
group of
best a marginal role binding decisions would result from the
for the European sovereign states deliberation process. Even post-Lisbon, the
Commission in its making up EU cooperation under the CFSP is essentially
context as supposed membership, are cooperation between the member states with
guardian of the involving the Commission in an unofficial mediating
overarching themselves in role except where the existing acquis
European interest. communautaire (the total body of EU law
issues of
For example, the accumulated thus far) is threatened. Those
Commission “may security… issues remain exclusively reserved for national
refer to the Council governments to deal with as they see fit to the
any question relating to the common foreign extent beyond having allowed for such
and security policy and may submit proposals concepts as the European Security and
to the Council” as well as request the Defense Policy (ESDP), now Common
convening of an extraordinary Council Security and Defense Policy (CSDP), and EU
meeting. 70 As a consequence of the Treaty of Battle Groups to be developed. 74
Lisbon, the role of the Commission to “give
its opinion particularly on whether the As referred to before, security at the European
enhanced cooperation proposed [by EU level has had distinct historical roots. To start,
member states] is consistent with Union international cooperation in the areas of
policies” 71 may have been relocated to the defense and security had always been dealt
69 72
Note that the Treaty of Lisbon amended also the Treaty on See Article 329(2), Treaty on the Functioning of the
European Union, so that in the consolidated version of the European Union.
73
latter as per 1 December 2009, Title V now comprises Article 31(1), Treaty on European Union as Amended by
Articles 21-46. the Treaty of Lisbon.
70 74
Article 30(1), see also (2), Treaty on European Union as See Articles 326-334, Treaty on the Functioning of the
amended by the Treaty of Lisbon. European Union. For example, the CSDP is the domain of the
71
Article 27c, Treaty on European Union, as inserted by the Council of the European Union, representing the member
Treaty of Nice. states under the Lisbon Treaty, not the European Commission.
with in the context of NATO or the WEU. As the specific military domain, the erstwhile
a consequence of the shifting paradigms, the main focus of the WEU. 77
WEU is now being integrated into the EU
structures as part of the intergovernmental In short, in this institutional domain of
CFSP. That integration turns out to be a slow European involvement in space security,
process. It started in 1999 with a first level of slowly but gradually, the European institutions
integration of WEU functions into the EU properly speaking, as compared to the group
framework, and has meanwhile led to the of sovereign states making up EU
handing over of the WEU satellite center at membership, are involving themselves in
Torrejon, Spain to become the EU Satellite issues of security in a broad sense. It seems
Center, jointly with a European Institute of inevitable that this process increasingly will
Security Studies in 2002. Yet these transfers also involve more clearly outlined military
have not been finalized – and some doubt and defense issues.
whether such integration will be ever
complete. 75 The integration described here
does not ipso facto subsume the WEU within The European Union
the EU’s institutional structures. and the Trade Aspects of Security
Prior to the Treaty of Lisbon, the Treaty on The second inroad the Union started to make
European Union referred to the role of the into the realm of security concerns the risks
WEU in somewhat ambiguous terms. Security inherent in today’s voluminous global trade
policies in the context of the CFSP pillar relations. These risks deal with proliferation of
“shall not prevent the development of closer security-sensitive dual-use goods, technology,
cooperation between two or more Member and know-how to states or non-state entities
States on a bilateral level, in the framework of that would result in harming European
the Western European Union (WEU) and interests.
NATO, provided such cooperation does not
run counter to or impede that provided for” In a sense, this was the most logical and
through the CFSP. 76 The clauses that have obvious starting point for the
replaced this one as per the Treaty of Lisbon Community/Union to get involved with the
do not mention the WEU in any specific terms security domain, as international trade and the
and as a consequence of dealing with potentially trade-distorting impact thereof on
essentially the same subject matter might be the EC Internal Market had belonged to the
argued to have effectively emptied the WEU EC’s competencies for a considerable time.
of all meaning. Yet any implementation And indeed, already long before the
thereof still hinges crucially on member state establishment of the EU and the CFSP pillar,
agreement to any substantive implementation the Community had drafted a first legislative
of the common and foreign security policy in document on export controls, the 1969
Regulation 2603/69. 78
75
See Ralph Folsom, Principles of European Union Law
77
(2005), 25. Formally, the WEU still is its own See Articles 42 and forward, Treaty on European Union as
intergovernmental self, though now essentially dormant; the Amended by the Treaty of Lisbon, inter alia also providing
entry into force of the Treaty of Lisbon has not yet led to for an (in legal terms equally limited) role of the European
decisions to disband the WEU. Defense Agency.
76 78
Article 17, Treaty on European Union as Amended by the Regulation of the Council establishing common rules for
Treaty of Nice. exports, (EEC) No. 2603/69, of 20 December 1969.
These developments were given a from the formally non-binding MTCR and
considerable boost by several developments in Wassenaar regimes, while working towards a
the 1990s. First, there was the aforementioned harmonization of the ways and means by
creation of the Union and the CFSP – leading which individual member states would
to such further EC law as Regulation implement and apply those international
3381/94 79 and Decision 94/942/CFSP 80 obligations and guidelines. 84 As the
drafted under the Treaty on European Union, Regulation itself phrases it: its aims are to
even as these documents were far from develop an “effective common system of
comprehensive in scope. Second, the changing export controls on dual-use items [which] is
geopolitical landscape caused the necessary to ensure... the international
aforementioned CoCom/MTCR-regime to be 81
commitments and responsibilities of the
widened in scope, most notably leading to the Member States, especially regarding non-
establishment of the Wassenaar proliferation, and of the European Union,”
Arrangement 82 encompassing all dual-use through “a common control system and
sensitive technologies and related products harmonized policies for enforcement and
and know-how in the mid-1990s. Third, the monitoring” as “a prerequisite for establishing
limited progress, as compared to the ambitions the free movement of dual-use items inside the
of the then-Commission, of development of Community” – the most fundamental
European security policy, including but not justification for EU institutions to address the
limited to space, in terms of a European Space issue of international trade in dual-use
Strategy on the basis of the CFSP made the goods. 85
European institutions more aware of the
limited areas where progress could more The Regulation itself has been amended on
easily and readily be expected, namely average almost once a year since by later
international security and international trade. instruments of EC law, 86 but still remains the
The result was of all this was Regulation 84

An extended analysis of Regulation 1334/2000 and the
1334/2000 83 providing a baseline framework framework built upon it can be found in Frans von der Dunk,
“A European “Equivalent” to United States Export Controls:
for implementing in a binding European European Law on the Control of International Trade in Dual-
context the international obligations resulting Use Space Technologies,” Astropolitics 7 (2009): 110-124.
85
See Paragraphs (2), (3), Preamble, Regulation 1334/2000,
79 and Article 1.
Council Regulation setting up a Community regime for the 86
This concerns Council Regulation amending Regulation
control of exports of dual-use goods, No. 3381/94/EC, of 19
(EC) No. 1334/2000 with regard to intra-Community transfers
December 1994.
80 and exports of dual-use items and technology, No.
Council Decision on the joint action adopted by the Council 2889/2000/EC, of 22 December 2000; Council Regulation
of the basis of Article J.3 of the Treaty on European Union amending Regulation (EC) No. 1334/2000 with regard to the
concerning the control of exports of dual-use goods, list of controlled dual-use items and technology when
94/942/CFSP, of 19 December 1994. exported, No. 458/2001/EC, of 6 March 2001; Council
81
Currently, 19 out of the 27 EU member states – Cyprus, Regulation amending and updating Regulation (EC) No.
Estonia, Latvia, Lithuania, Malta, Romania, Slovakia and 1334/2000 setting up a Community regime for the control of
Slovenia are missing – are participating in the MTCR. exports of dual-use items and technology, No. 2432/2001/EC,
82
Wassenaar Arrangement on Export Controls for of 20 November 2001; Council Regulation amending
Conventional Arms and Dual-Use Goods and Technologies Regulation (EC) No 1334/2000 setting up a Community
(hereafter Wassenaar Arrangement), effective 12 July 1996. regime for the control of exports of dual-use items and
Currently, 26 out of the 27 EU member states – only Cyprus technology, No. 880/2002/EC, of 27 May 2002; Council
is missing – as well as all 18 ESA member states are Regulation amending and updating Regulation (EC) No
participating in the Arrangement. 1334/2000 setting up a Community regime for the control of
83
Council Regulation setting up a Community regime for the exports of dual-use items and technology, No. 149/2003/EC,
control of exports of dual-use items and technology, No. of 27 January 2003; Council Regulation amending and
1334/2000/EC, of 22 June 2000. updating Regulation (EC) No 1334/2000 setting up a
key document in the present context. Its main Technology itself is also defined in such broad
body provides for the basic regime whereas terms, albeit not in the main body of the
the Annexes, through their regular updates, Regulation itself, but by Annex I: “specific
take account of new developments regarding information necessary for the ‘development,’
the subject matter itself as following inter alia ‘production,’ or ‘use’ of goods” further
from the Wassenaar Arrangement updates. In elaborated in that “this information takes the
particular, Annex I entitled “List of Dual-Use form of ‘technical data’ or ‘technical
Items and Technology,” and thereby listing all assistance,’” whereby the latter “may take
items subject to the regime created by the forms, such as instructions, skills, training,
Regulation, was amended time and again to working knowledge, and consulting services
keep track of ongoing technical, practical, and and may involve the transfer of ‘technical
political developments. 87 data,’” and these may in turn “take forms,
such as blueprints, plans, diagrams, models,
Dual-use items as covered by the Regulation’s formulae, tables, engineering designs and
regime are broadly defined as all “items, specifications, manuals and instructions
including software and technology, which can written or recorded on other media, or devices,
be used for both civil and military purposes,” 88 such as disk, tape, read-only memories.” 91
whereas export comprises normal export of
goods, but extends to “transmission of The core element of the regime developed on
software or technology by electronic media, the basis of the Regulation concerns the
fax, or telephone to a destination outside the authorization process and procedures, which
Community,” 89 and “exporter” is equally remains a prerogative of the EU member
broadly defined. 90 Since such a definition of states, but should conform to the parameters
dual-use items clearly could encompass more as provided by the Regulation’s regime. The
or less all space technology, the broad sweep point of departure, in any event, still is
ratione materiae of the European regime in national authorization.
terms of space activities becomes clear
immediately. Firstly, such an authorization is required for
export of the dual-use items as defined and
listed in Annex I. 92 Secondly, the obligations
of a prospective exporter are not limited to
Community regime for the control of exports of dual-use screening an exhaustive list and then abiding
items and technology, No. 1504/2004/EC, of 19 July 2004; by its terms, as there are scenarios under
Council Regulation amending and updating Regulation (EC)
No 1334/2000 setting up a Community regime for the control
which an exporter would be obliged to comply
of exports of dual-use items and technology, No. with the control and authorization mechanisms
394/2006/EC, of 27 February 2006; Council Regulation provided by the Regulation, also where the
amending and updating Regulation (EC) No 1334/2000
setting up a Community regime for the control of exports of
items concerned as such are not listed in
dual-use items and technology, No. 1183/2007/EC, of 18 Annex I. 93
September 2007; and Council Regulation amending and
updating Regulation (EC) No 1334/2000 setting up a
Community regime for the control of exports of dual-use 91
Annex I, Regulation 1167/2008.
items and technology, No. 1167/2008/EC, of 24 October 92
See Article 3(1), Regulation 1334/2000; and introductory
2008. paragraph, Annex I – List of Dual-Use Items and Technology,
87
Annex I, Regulation 1167/2008; further see Article 3, Regulation 1167/2008.
Regulation 1334/2000. 93
The three scenarios concern: (1) potential involvement of
88
Article 2(a), Regulation 1334/2000. the item concerned in the context of weapons of mass
89
Ibid., Article 2(b), sub-paragraph (iii). destruction; (2) export to a state subject to an arms embargo
90
See Ibid., Article 2(c). imposed by the European Union, the Organization for
As national sovereignty of member states is shall be granted – or refused – by the member

still the baseline, the Regulation does not take state where the exporter is located. 99
away the possibility for a prospective exporter
to be confronted with requirements for The CGEA’s scope is essentially limited in
authorizations imposed by member states three ways. One, ratione materiae only items
under national laws and regulations outside of as defined by Annex II – with the exception
the system of the Regulation properly moreover of those mentioned in Part 2 thereof
speaking. 94 In such cases, the Regulation only – require a CGEA as opposed to a national
imposes upon the member state adopting or authorization, which still covers the bulk of
maintaining relevant legislation a duty to items listed in Annex I. 100 Two, however,
inform other member states as well as the ratione personae the CGEA covers such
Commission. 95 exports only to the extent the target
destination is Australia, Canada, Japan, New
With regard to these national authorization Zealand, Norway, Switzerland, or the U.S. 101
regimes, the Regulation only further imposes Three, further exceptions to applicability of
the requirement that they should allow for the CGEA occur in more limited scenarios. 102
three types of authorizations: individual,
global, or general, with the latter being valid Thus, Regulation 1334/2000 in conjunction
throughout the Community. 96 While leaving with follow-up Regulations created a complex
the choice to the national member state interlocking system of European-wide and
authorities regarding which type of national authorizations. That system required
authorization to use in a certain case, a few European-wide authorizations instead of
specific limits are imposed by the Regulation national ones in varying measures for the
in that regard. 97 export of the items listed in a few interlocking
Annexes to other EU member states, a limited
Next to that, as the cornerstone of actual set of close political allies of other states and
harmonization, the Regulation introduces the destinations, otherwise leaving the individual
concept of the Community General Export sovereign discretion of the member states
Authorization (CGEA). 98 The CGEA intact.
explicitly constitutes an exception to the
sovereign discretion of member states as for Nevertheless, presenting a kind of European
all items not covered by it; any authorization equivalent to U.S. export controls, the
Regulation and the regime built upon it
99
Ibid., Article 6(2).
100
See Annex II, Regulation 1167/2008; Part 1 of Annex II
simply provides in full “This export authorization covers the
Security and Cooperation in Europe (OSCE) or the United following items: All dual-use specified in any entry in Annex
Nations Security Council; and (3) export without national I of the present Regulation except those listed in Part 2
authorization or in violation of a national authorization; see below.”
Articles 3(2), 4(1), (2), (3), and (4), Regulation 1334/2000. 101
See Ibid., Part 3.
94
Article 4(5), Regulation 1334/2000. 102
95 See Ibid., Articles 1, 2, and 3, Annex II. These three
See Ibid., Article 4(6). scenarios concern: (1) (once again): potential involvement of
96
See Ibid., Article 6(2). the item concerned in the context of weapons of mass
97
See further Frans von der Dunk, “A European “Equivalent” destruction; (2) (once again) export to a state subject to an
to United States Export Controls: European Law on the arms embargo imposed by the European Union, the OSCE, or
Control of International Trade in Dual-Use Space the United National Security Council; and (3) where the
Technologies,” Astropolitics 7 (2009): 122-4. relevant items are to be exported to a destination within a
98
See Article 6(1), Regulation 1334/2000. customs free zone or free warehouse.
represents a careful, detailed, and politically development of two European “flagship

noteworthy foray of the EU into the security projects,” Galileo and GMES. Both concerned
domain, including space security in view of major programs aiming at launching and
the inherent dual-use of most space activities, operating a system of satellites as the core part
hardware, and technology. The establishment of an infrastructure to be used for practical
of the European Defence Agency (EDA) in downstream terrestrial applications. It may be
2004 103 may also turn out to contribute to added that perhaps soon a third project is to
further fundamental EU inroads in legal and follow, i.e., the joint development of European
political terms in the European security SSA capabilities, which will also have a
domain, albeit that Agency falls under the substantial, and probably even more profound
competencies specifically of the Council of impact on security issues in space for Europe.
the European Union, not of the Commission.
Galileo, initiated by the European
As with the development of the CFSP pillar, Commission, is the second-generation,
this development took place without the European-owned and European-operated
involvement of ESA – although ESA’s role in global satellite navigation system currently
the European space endeavour under the being developed to be operational by 2013. 105
Regulation’s regime was recognized to the Its key features, as compared with the
extent that export controls on launchers and currently operational satellite navigation
launch-related items otherwise applicable systems, the U.S. Global Positioning System
would essentially be waived for items “that (GPS) and the Russian GLONASS (Global
are transferred on the basis of orders pursuant Navigation Satellite System), have been listed
to a contractual relationship placed by the as being an internationally-operated system
European Space Agency (ESA) or that are controlled by civilians and providing for 27,
transferred by ESA to accomplish its official plus three spare, satellites in medium Earth
tasks” or “that are transferred to a State- orbits (MEO). The satellite signals should be
controlled space launching site in the territory augmented world-wide and should be
of a Member State, unless that Member State
controls such transfers within the terms of this 105
Council Resolution on the European Contribution to the
Regulation” – noting here that European Development of a Global Navigation Satellite System
launches usually take place from Kourou, (GNSS), of 19 December 1994; Communication from the
French Guyana, which is French territory. 104 Commission to the Council and the European Parliament –
Towards a Trans-European Positioning and Navigation
Network: including A European Strategy for Global
Navigation Satellite Systems (GNSS), COM(1998) 29 final,
European Union - European Space of 21 January 1998; Galileo – Involving Europe in a New
Generation of Satellite Navigation Services, of 10 February
Agency Cooperation 1999, COM(1999) 54 final; Council Resolution on the
involvement of Europe in a new generation of satellite
The most recent angle from which the EU, this navigation services – Galileo-Definition phase, of 19 July
1999; Commission Communication to the European
time in close cooperation with ESA, was Parliament and the Council – On GALILEO, of 22 November
venturing into the space domain, was the 2000, COM(2000) 750 final; Council Regulation setting up
the Galileo Joint Undertaking, No. 876/2002/EC, of 21 May
2002; Council Regulation on the establishment of structures
103
See Council Joint Action 2004/551/CFSP of 12 July 2004 for the management of the European satellite radio-navigation
on the establishment of the European Defense Agency; also, programs, No. 1321/2004/EC, of 12 July 2004; and
see Article 42(3), Treaty on European Union as Amended by Regulation of the European Parliament and of the Council on
the Treaty of Lisbon. the further implementation of the European satellite
104
Part I, Annex IV, Regulation 1167/2008, sub-paragraph (1) navigation programs (EGNOS and Galileo); No.
resp. (4). 683/2008/EC, of 9 July 2008.
available in principle for usage by many has been Regulation 683/2008 on the further
transport as well as non-transport applications. implementation of EGNOS (the regional
These satellites should furthermore provide, forerunner to Galileo currently operational)
apart from an Open Service similar to GPS and Galileo itself. By now, two test satellites
and GLONASS Open Services, three types of are operational: the GIOVE-A, built by Surrey
enhanced services, for which users one way or Satellite Technology, launched December
another would have to pay, of which the 2005, and the GIOVE-B, built by Galileo
Public Regulated Service (PRS) is of Industries and launched April 2008. 109
importance for the current discussion, plus
search and rescue services additional to the From several perspectives, including the
existing COSPAS-SARSAT Program geopolitical one, Galileo is a major success
[International Satellite System for Search and already prior to its proper deployment. Ever
Rescue]. 106 since the People’s Republic of China (PRC)
became the first non-European partner to join
Galileo has undergone various delays and a the project at the highest level, 110 many such
number of changes of direction over the last states have expressed their interest in doing so
years, most notably discarding for the time and some concluded similar agreements. 111
being the Public Private Partnership (PPP) Though, with the transition from the Galileo
approach in financing, building, and operating Joint Undertaking (GJU) to the European
the system. The EU Council of Ministers by GNSS [Global Navigation Satellite System]
means of a Resolution of 8 June 2007 Supervisory Authority, as well as the funding
unequivocally concludes in this regard “that problems, these cooperative developments
the current concession negotiations have failed have largely stalled, in the case of the PRC
and should be ended.” 107 However, the even leading to a severe curtailing of the
Resolution, as well as ensuing political actual level of cooperation. 112
discussions within Europe at the highest level,
left little doubt that the European stakeholders Such involvement of non-EU, largely non-
are determined to make Galileo happen and to European, countries had for the first time
replace the private investments that are now raised major issues related to European
no longer expected with public investments security issues, which the Commission had to
one way or another; indeed, public investment cope with. Notably, the Cooperation
has been achieved through the transfer of Agreement with the PRC specifically did not
unused Common Agricultural Funds. 108 The
most recent result of that determination so far
106 109
The COSPAS-SARSAT currently is a four-state satellite The first four in-orbit validation phase satellites for Galileo
system available to aircraft, ships, other vehicles, and persons are planned for launch by November 2010.
110
in distress for the purpose of sending emergency signals and By becoming a member of the Galileo Joint Undertaking
alerting rescue services; see International COSPAS-SARSAT (GJU), the precursor to the European GNSS Supervisory
Program Agreement, entered into force on 30 August 1988. Authority (GSA); see Cooperation Agreement on a Civil
107
Item 2, Council Resolution on GALILEO, 2805th Transport, Global Navigation Satellite System (GNSS) – Galileo
Telecommunications, and Energy Council Meeting, between the European Community and its Member States and
Luxembourg, 6-8 June 2007. the People’s Republic of China, of 30 October 2003; Doc.
108 Council of the European Union, 13324/03.
Items 4-7, Council Resolution on GALILEO, 2805th
111
Transport, Telecommunications and Energy Council Meeting, For example; see Cooperation Agreement on a Civil Global
Luxembourg, 6-8 June 2007; respectively Council of the Navigation Satellite System (GNSS) between the European
European Union, 2828th Council Meeting, Economic, and Community and its Member States and the State of Israel, of 2
Financial Affairs, Brussels, 13 November 2007, 14534/07 June 2005.
112
(Presse 251), at 18. Space News 12 June 2006.
include access by the PRC to the PRS. 113 The Regulation further outlines the envisaged
PRS is the Galileo-service most akin to the approach to Galileo, including the system of
GPS Precise Positioning Signal. PRS will be governance that should apply to the
encrypted and physically protected, and only operational phase. Important for our current
accessible to a limited group of users – in topic is that the European GNSS Supervisory
principle all governmental organs, some Authority, established by Regulation
hybrid service providers in areas key to 1321/2004, is to fulfill the key role inter alia
modern society, and also in terms of security, in security accreditation and operation of the
such as energy and telecommunications Galileo security center. 117 In this respect, the
networks. Supervisory Authority will operate under the
umbrella of the Commission, which takes it
Also, the Agreement with the PRC touched upon itself to “manage all questions relating to
upon the issue of export control of security- the security of the systems, duly taking into
sensitive space hardware and technology in account the need for oversight and integration
the context of Galileo cooperation. It notably of security requirements in the overall
provided that “Exports by China to third programs.” 118
countries of sensitive items related to the
Galileo program will have to be submitted for As already has become clear, and in spite of
prior authorization by the competent Galileo the civil governance structure to be developed
security authority, if the authority has for Galileo, security issues will have to be
recommended to the EU Member States that faced. Firstly, the possibility of potential
these items be subject to export adversary use of its signals would still have to
authorization.” 114 In any event, parties be dealt with; someone has to take decisions,
reserved the right to apply applicable laws and in the worst case, to effectively shut down
regulations in the context of EU-PRC parts of the system, when Galileo signals
cooperation on Galileo as a safety precaution threaten to be used by states or non-state
in case key security issues would be perceived actors against the security interests of Europe
to be at stake. 115 Regulation 683/2008, the and European states. 119
currently ruling legal document on Galileo,
provides on this issue that any additional Secondly, as referred to before, the envisaged
contributions by member states, third states, or PRS, while painstakingly avoiding any
intergovernmental organizations can only be reference to military or defense, was modeled
arranged subject to dedicated agreements, in many respects on the GPS Precise
allowing a similar degree of control over Positioning Signal. Whilst the PRS is
security matters. 116 officially to be made accessible to all
Being developed under EU leadership, with 117

See Article 16, Regulation 683/2008.
ESA as developer and procuring agency, the 118
Ibid., Article 13(1). See further Article 13(2)-(5), as well as
Article 14 on the general governance of Galileo for security
113
purposes.
On the other hand, see Article 4(2), Cooperation 119
This was essentially taken care of by involving a “Galileo
Agreement on a Civil Global Navigation Satellite System security center” in the overall governance scheme for the
(GNSS) – Galileo between the European Community and its Galileo system, as well as specific security-related
Member States and the People’s Republic of China. regulations; see 16th preamble paragraph, Articles 7, 13, 14,
114
Ibid., Article 8(4). and 16, Regulation 683/2008; also see Council Joint Action
115
Ibid., Article 5(1). on aspects of the operation of the European satellite radio-
116
See Articles 4(4), (5), and 6(3) and (4), Regulation navigation system affecting the security of the European
683/2008. Union, 2004/552/CFSP, of 12 July 2004.
governmental services, debate has already before the latter part was changed to
arisen about whether such governmental uses Environment and Security. Security as
should not also include the use by the military understood here gradually came to be
of respective member states. To those familiar interpreted beyond the concept of “civil
with Western political history over the last security” so as to encompass more
half century, it will come as no surprise that “traditional” military and defense issues of
France is most adamant in seeing no obstacle security. 121
to such use, whereas the United Kingdom, at
least until recently, was most adamant in GMES, being tasked to provide Europe with
emphasizing that such military uses were its own independent and comprehensive
never contemplated, and should not be satellite Earth observation infrastructure for
contemplated, or at least be vigorously generation of data and information on a
pursued, now. comprehensive range of subjects, will bring
the inclusion of defense, security, and military
The other flagship project, GMES, is of more matters into the broader civil European
recent date, and consequently has not yet governance structures. Like Galileo, this
evolved to such an extent as Galileo, in impacts both the EU and ESA in terms of their
particular, as relevant to the present traditional domain having explicitly excluded
discussion, in terms of an attendant legal and military, defense, and security issues.
governance framework to handle to security Establishment of a coherent SSA flagship
aspects. 120 At the same time, it now seems project will no doubt move such developments
certain, with the launch of the Sentinel 1 one step further again.
satellite for GMES scheduled for 2011 (the
first Earth observation satellite for GMES)
that it will actually precede an operational The Treaty of Lisbon
Galileo system to space. GMES is to become
the pan-European contribution to the Global The developments regarding the increasing
Earth Observation System of Systems involvement of the EU in the space security
(GEOSS), representing a global effort to domain are converging with the latest
enhance environmental protection with the European achievement, which is the entry into
help of satellite technology. force of the Treaty of Lisbon as of 1
December 2009. The increasing growth of the
Nonetheless, GMES represents the next step Union – adding twelve new member states in
for space security issues in Europe since this the time span of a mere three years (2004-
project for the first time did prominently refer 2007) – was calling for a further
to the concept of security – interestingly, in rationalization of the governance structure,
the process extending its scope, as GMES was where a Commission having at least one
originally meant to stand for Global Commissioner of every member state and the
Monitoring for Environmental Security, possibilities for small numbers of member
states to block legislative development in the
120 Council were threatening to make further
See further Council Resolution on the launch of the initial
period of global monitoring for environment and security
(GMES), of 13 November 2001; Communication from the
121
Commission to the European Parliament and the Council – See further on this Frans von der Dunk, “A European
Global Monitoring for Environment and Security (GMES): “Equivalent” to United States Export Controls: European Law
Establishing a GMES capacity by 2008, COM(2004) 65 final, on the Control of International Trade in Dual-Use Space
of 3 February 2004. Technologies,” Astropolitics 7 (2009).
progress of the Union as a whole increasingly underlying the European Union. Among many
difficult. Also, the calls for more involvement other things, it also tried to further enhance the
at a European level in global issues of position of Europe as an entity in its own right
sustainable development, poverty, climate in space and security, and consequently the
change, and last, but not least, the new space security domain.
security issues and a consequent revival of
ideas to extend the scope of supranational
policy-making and law-making did not go The Treaty of Lisbon and Security
unheard.
As far as the security-side to the equation is
As mentioned, the first effort after the Treaty concerned, at least the principle of “security”
of Nice of 2001 to take a step forward in was partially transferred from the Treaty on
European integration was the Treaty European Union to the Treaty on the
establishing a Constitution for Europe agreed Functioning of the European Union, and
upon in Rome in 2004 – but this effort failed. included a reference to “defense” at the same
This was not in the least because the inclusion time. The first treaty was the one document
of the word “Constitution,” and its presumed part of the Treaty of Lisbon where the EC
corollaries of a “European anthem” and an legal order and the key roles of Commission,
official “European flag” as symbols of the Parliament, and Court were not engaged; the
perceived ambition to create a European other, effectively the old EC Treaty as
“super-state” with certain democratic lacunae, amended by the Treaty of Lisbon, was the
triggered nationalist sentiments sufficiently to second such document where EC law and
make the treaty fail in the referenda held in Commission, Parliament, and Court
France and the Netherlands. An additional competencies did apply.
factor blocking the required EU-wide
acceptance was the rather unwieldy and So, in matters of security, now “The Union
“juridical-technical” nature of the document shall have competence, in accordance with the
that the combination of the various updating provisions of the Treaty on European Union,
treaties with particular the original EC Treaty to define and implement a common foreign
had become. and security policy, including the progressive
framing of a common defense policy.” 123
While the Treaty of Lisbon, to many a scaled- However, the actual implementation of such
down and more realistic version of the Treaty policies refers back to the Treaty on European
establishing a Constitution for Europe, took Union, to wit its second pillar where the
close to two years between acceptance of the intergovernmental structures reside. Also,
final text and entry into force, 122 in the end it Article 4 of the Treaty on the Functioning of
did succeed in becoming the key document the European Union makes reference to shared
competence between the Union and EU
122
The Treaty of Lisbon was voted down in Ireland by a member states in the “area of freedom,
referendum the first time around, and managed a favorable security, and justice.” 124 Note, that “security”
vote the second time only after considerable wheeling and is inserted in the text between “freedom” and
dealing and a number of cosmetic changes; and even after the
Treaty had passed that hurdle, in particular Poland and the “justice,” whereby the term “security” may
Czech Republic were serious candidates to block the entry
into force of the Treaty – acceptance of the Treaty of Lisbon,
123
as of any other fundamental treaty in the EC and EU context, Article 2(4), Treaty on the Functioning of the European
had to be unanimous as between the twenty-seven member Union.
124
states in order to lead to entry into force. Ibid., Article 4(2.j).
arguably be somewhat confined to civil without actual follow-on juridical or

security. legislative action, may be disputed, but in
principle these would not be subject to the
What the actual effect will be of this partial democratic controls of the European
“transfer” of the security domain into the Parliament, and therefore remain within the
Treaty on the Functioning of the European exclusive domain of democratic controls of
Union, will depend on the future usage that relevant national parliaments, and by the same
the Union’s institutions may seek to make of token would fall outside the jurisdiction of the
these clauses. On one hand, the shared Court of Justice.
competence of Article 4(2) essentially means
that “the member states can in principle only Furthermore, it is the European Council, a
exercise their competences to the extent that special version of the Council of Ministers
the Union has not exercised its competence, 125 comprising the Heads of State of the member
which in turn means the Union’s institutions states, hence still first and foremost
can, following Article 288 of the Treaty on the representing their individual member states’
Functioning of the European Union, adopt interests, 127 which shall now, further to Article
Regulations, Directives, and Decisions. 21 of the consolidated Treaty on European
Union, identify the
On the other hand, Article 2(4) ensures that …at least the strategic interests and
any action of the Union in this domain will principle of objectives of the
have to follow the rules of the Treaty on “security” was Union and take
European Union in its version as consolidated relevant decisions by
by the Treaty of Lisbon. Here, the Union may
partially unanimity, inter alia
now “define and pursue common policies and transferred from in the area of
actions” among others to “safeguard its the Treaty on common foreign and
values, fundamental interests, security, European security policy. 128
independence and integrity; … preserve Union to the The role of the
peace, prevent conflicts, and strengthen Treaty on the Commission is
international security in accordance with the limited to the right to
purposes and principles of the United Nations
Functioning of propose external
Charter, with the principles of the Helsinki the European actions other than
Final Act, and with the aims of the Charter of Union… those for the area of
Paris, including those relating to external common foreign and
borders,” objects clearly at least potentially security policy, which is the domain of the
involving security, including military occupant of the newly created High
decisions. 126 To what extent such policies and Representative for Foreign Affairs and
actions may comprise juridical or legislative Security Policy, a special official which is,
action, and also to what extent such policies although Vice-President of the Commission,
would essentially remain an empty shell directly appointed by the European Council. 129
125
Stephen Hobe, et al, A New Chapter for Europe in Space,”
127
Zeitschrift für Luft- und Weltraumrecht I: 54 (2005), 347. See further Articles 235-236, Treaty on the Functioning of
126 the European Union.
Article 21(2), Treaty on European Union as amended by
128
the Treaty of Lisbon amending the Treaty on European Union See Article 22(1), Consolidated Version of the Treaty on
and the Treaty Establishing the European Community European Union.
129
(hereafter Consolidated Version of the Treaty on European See Ibid., Articles 18(1) and (2), and 22(2); further Article
Union), Lisbon, entered into force 1 December 2009. 30.
Article 24(1) of the consolidated version of the It remains to be seen how the political
Treaty on European Union echoes the landscape, both within the European Union
aforementioned provision of Article 2(4) of itself and from a more geopolitical
the Treaty on the Functioning of the European perspective, will evolve and whether this
Union, in allotting to the Union “all areas of might, under certain circumstances, allow for
foreign policy and all questions relating to the an increasingly larger role for the EU
Union’s security, including the progressive institutions in security issues.
framing of a common defense policy.” This
common foreign security policy, however, is
subject to specific rules and procedures, The Treaty of Lisbon and Space
requiring unanimous agreement by the
European Council and alternatively the In regard to outer space, the Treaty of Lisbon
Council of Ministers, but “the adoption of was hoped for to present at least a courageous
legislative acts shall be excluded” and (with step forward. When its failed predecessor, the
one exception not relevant here) “the Court of Treaty Establishing a Constitution for Europe,
Justice of the European Union shall not have was being negotiated and drafted, it had
jurisdiction with respect to these included two novel provisions offering a key
provisions.” 130
to considerably enlarging Europe’s role in
space.
In sum, in all of Title V of the consolidated
version of the Treaty on European Union, Firstly, that Treaty provided in Article I-14
entitled “General Provisions on the Union’s that “In the areas of research, technological
External Action and Specific Provisions on development, and space, the Union shall have
the Common Foreign and Security Policy” competence to carry out activities, in
and comprising Articles 21 through 46, the particular to define and implement programs;
Commission is referred to no more than eight however, the exercise of that competence shall
times, in a manner that can be described as not result in Member States being prevented
being on the fringe of the actual decision- from exercising theirs.” 131 This clause was
making processes. From the same perspective, part of the Article providing for the scope of
the European Parliament is referred to a mere shared competence between the Union and its
seven times, the Court of Justice of the member states, but the last part has led
European Union exactly once. By contrast, the commentators to conclude that this was not so
European Council has been mentioned 19 much a normal shared competence, but rather
times, the Council of Ministers as such no less a “parallel competence.” 132 In other words,
than 74 times, and the term “Member States” individual member states would retain
occurs 58 times in this Title. There is no better sovereign discretion to draft and implement
way to directly visualize the different roles of their own national policies and legislation in
the first three, the “truly European this area.
institutions,” as compared with the latter two
institutions where the individual member
states’ interests are most prominently
defended, in the context of security under the
131
Common Foreign and Security Policy. Article I-14(3), Treaty Establishing a Constitution for
Europe.
132
Stephen Hobe, et al, “A New Chapter for Europe in
Space,” Zeitschrift für Luft- und Weltraumrecht I: 54 (2005),
130
Ibid., Article 24(1). See further Articles 28 and 31. 346-347.
Secondly, specifically on space it was had handed down Decisions enforcing the
provided: general competition regime in the sector.136 It
also overlooked a similar regulatory
1. To promote scientific and technical involvement in the satellite navigation area,
progress, industrial competitiveness, beginning with the Regulation setting up the
and the implementation of its
policies, the Union shall draw up a
Galileo Joint Undertaking in 2002. 137
European space policy. To this end, it
may promote joint initiatives, support More precisely, therefore, entry into force of
research and technological the Treaty Establishing a Constitution for
development, and coordinate the Europe would have meant a first
efforts needed for the exploration and
exploitation of space.
comprehensive competence in terms of scope,
2. To contribute to attaining the not being indirectly deduced from
objectives referred to in paragraph 1, competencies in telecommunication and
European laws or framework laws transport fields (e.g., note that Galileo was
shall establish the necessary presented first and foremost as a tool for trans-
measures, which may take the form
of a European space program.
European transport networks, and still
3. The Union shall establish any essentially resides with the Commission’s
appropriate relations with the Directorate on Transport and Energy). This
European Space Agency. 133
By many, this was considered to represent the of 24 March 1997; Directive of the European Parliament and
first true acceptance of a competence in space of the Council on a common framework for general
for the Union, even if only shared or parallel. authorizations and individual licenses in the field of
telecommunications services, 97/13/EC, of 10 April 1997;
This, however, overlooked the fact that Decision of the European Parliament and of the Council on
already since 1994, with the adoption of the the selection and authorization of systems providing mobile
Satellite Directive, 134 the Union had exercised satellite services (MSS); No. 626/2008/EC, of 30 June 2008.
136
For example: Commission Decision relating to a
a fundamental competence to regulate satellite proceeding pursuant to Article 85 of the EC Treaty and
communications as part of the broader Article 53 of the EEA Agreement (IV/34.768 – International
telecommunications sector in the context of Private Satellite Partners), No. 94/895/EC, of 15 December
1994; Commission Decision declaring a concentration to be
the European Internal Market. From that incompatible with the common market and the functioning of
moment on, for example, the Commission had the EEA Agreement (IV/M.490 – Nordic Satellite
adopted more Regulations, Directives, and Distribution), No. 96/177/EC, of 19 July 1995; Commission
Decision relating to a proceeding under Article 85 of the EC
Decisions to deal with specific aspects of Treaty and Article 53 of the EEA Agreement (IV/35.518 –
commercial satellite communications 135 and Iridium), No. 97/39/EC, of 18 December 1996; Commission
Decision declaring a concentration to be compatible with the
common market according to Council Regulation (EEC) No
133
Article III-254, Treaty establishing a Constitution for 4064/89 (IV/M.1564 – Astrolink), of 25 June 1999;
Europe. Commission Decision declaring a concentration to be
134
Commission Directive amending Directive 88/301/EEC compatible with the common market according to Council
and Directive 90/388/EEC, in particular with regard to Regulation (EEC) No 4064/89 (IV/M.4465 - Thrane and
satellite communications, 94/46/EC, of 13 October 1994. Thrane/Nera), of 21 March 2007; Commission Decision
135
For example: Commission Directive amending Directive declaring a concentration to be compatible with the common
90/387/EEC with regard to personal and mobile market and the EEA Agreement (COMP/M.4403 –
communications, 96/2/EC, of 16 January 1996; Commission Thales/Finmeccanica/Alcatel Alenia Space & Telespazio), of
Directive amending Directive 90/388/EEC with regard to the 4 April 2007; Commission Decision declaring a concentration
implementation of full competition in telecommunications to be compatible with the common market according to
markets, 96/19/EC, of 13 March 1996; Decision of the Council Regulation (EEC) No 4064/89 (IV/M.4709 – Apax
European Parliament and of the Council on a coordinated Partners/Telenor Satellite Services), of 20 August 2007,
137
authorization approach in the field of satellite personal Council Regulation setting up the Galileo Joint
communications systems in the Community, No. 710/97/EC, Undertaking, No. 876/2002/EC, of 21 May 2002.
was not generally considered to be subject to Note that paragraphs 1 and 3 are identical to
dispute, and even as the Treaty Establishing a paragraphs 1 and 3 of Article III-254 of the
Constitution for Europe was running into Treaty Establishing a Constitution for Europe,
trouble, this clause was expected to survive. 138 and that paragraph 4, though not present in the
latter, does only confirm the default
As it turned out, by way of an unpleasant relationship. Thus, paragraph 2 is the key
surprise for the supporters of European space difference here.
cooperation, the Treaty of Lisbon did take one
fundamental step backwards here. The Treaty First, it replaces the reference to European
on the Functioning of the European Union as laws and framework laws (the new names
per the Treaty of Lisbon in relevant part firstly proposed by the Treaty Establishing a
faithfully copies Article I-14 of the Treaty Constitution for Europe for Regulations and
Establishing a Constitution for Europe that Directives) with a more complicated formula,
was stated above. 139 which in essence still refers to EC secondary
law. 141 Second, a clause is now added
Secondly, however, the Treaty now provides: excluding from any such EU competence the
possibility to use Regulations, Directives, or
1. To promote scientific and technical Decisions for the purpose of harmonizing laws
progress, industrial competitiveness, and regulations of EU member states.
and the implementation of its
policies, the Union shall draw up a
Consequently, the EU competence on space is
European space policy. To this end, it now limited to adopting secondary EU law
may promote joint initiatives, support that either (1) establishes a space project or
research and technological space program and presumably takes care of
development, and coordinate the its financing through EU budgets, or (2)
efforts needed for the exploration and
exploitation of space.
applies the freedoms of movement of goods,
2. To contribute to attaining the services, persons and capital as well as the
objectives referred to in paragraph 1, competition regime to the space sector, as the
the European Parliament and the remaining key pillars of the Internal Market
Council, acting in accordance with not covered by the last clause of paragraph 2.
the ordinary legislative procedure,
shall establish the necessary
measures, which may take the form With regard to the latter, moreover, with the
of a European space program, exception of areas of satellite
excluding any harmonization of the telecommunications and satellite navigation
laws and regulations of the Member where the leadership role of the Commission
States.
3. The Union shall establish any
and also in the legislative domain is generally
appropriate relations with the accepted and already has led to secondary EU
European Space Agency. law being adopted, actual adoption of
4. This Article shall be without Regulations, Directives, or Decisions may run
prejudice to the other provisions of into problems. Any existence of member state
this Title. 140
regulation on any such topic – as part of the
exercise of member state competence, left
138
Stephen Hobe, et al, “A New Chapter for Europe in
Space,” Zeitschrift für Luft- und Weltraumrecht I: 54 (2005), 141
The “ordinary legislative procedure” referred to here is
346. described as “the joint adoption by the European Parliament
139
Article 4(3), Treaty on the Functioning of the European and the Council of a regulation, directive or decision on a
Union. proposal from the Commission.” See Ibid., Article 289(1) and
140
Ibid., Article 189. Article 294.
unhampered under Article 4(3) of the Treaty and the Agency into the field of space security
on the Functioning of the European Union – has started to occur.
might be expected either to exclude ipso facto
a right for the EU institutions to adopt This process so far has been largely an
secondary EU law, or lead to sufficient indirect one, bringing many factors together –
opposition in the Council to preclude such the increasing entanglement, even
adoption in practice. convergence, of ESA and the EU, the gradual
swallowing of the WEU by the latter (where
Still, the combined force of existing perhaps that process is most advanced with
competencies in the satellite communication respect to the space part of the WEU), the
and satellite navigation fields, the clauses of double perspective of security and space from
the Treaty on the Functioning of the European which the Union is addressing space security,
Union, and the subsidiarity principle vis-à-vis the joint development of the flagship projects,
the inherently global domain of outer space the specific focus on international trade in and
may well lead to increasing activity of the EU exports of security-sensitive technology, and
institutions in the space domain. Once the trying to cope with potential Internal Market-
Council would be convinced that it is in the distorting consequences of national licensing
overarching interest to do so, the framework regimes on export control. The process is
briefly outlined above certainly would allow further driven by the political will of the
this to happen. Union to be in Europe’s driver’s seat with
regard to global developments, such as
concerning the Wassenaar Arrangement and
Conclusions the MTCR, but also Space Situational
Awareness and other space security-related
From the above analyses of the often issues.
painstaking and complicated processes of
European integration, it may be concluded that The failed Treaty Establishing a Constitution
the involvement of key intergovernmental for Europe and the successful Treaty of
entities in Europe, including the European Lisbon from that perspective together
Union and ESA, in space security is rapidly represented the extent to which the EU and its
evolving at least on a political and visibility leading institutions, first of all the
level, even as such involvement is crucially Commission, were able to move along that
shaped by the institutional structures and the path so far, and establish a first measure of
roles of the member states in delineating legislative and regulatory coherence on the
relevant competencies. The outside reality that European front. The results, as analyzed, are
space activities are almost always inherently rather mixed and certainly do not overcome
security-sensitive or even simply developed many of the complications, sometimes
from security needs has caught up with the perhaps even inconsistencies, arising as a
principled prohibition in the relevant result from the manifold angles from which
documents (for the European Union at least issues of space security are addressed in
until the Treaty on European Union) to Europe.
become fundamentally involved in security
issues. The European flagship projects, For example, in spite of the increasing
Galileo and GMES, may be seen as clear cooperation of the Union and ESA in matters
indicators that indeed a gradual acceptance of of space policy, and now even projects, a full-
the inevitability of involvement of the Union fledged integration of ESA into the Union
does not seem to be plausible for now. Issues,

such as the conflicting approach to the
financing of space industry in the context of
European space projects, with ESA largely
still forced to adhere to the “fair return”
concept and the Union insisting on open and
competitive procurement, will therefore
continue to require ad-hoc solutions, as was
achieved for example for Galileo. In that
sense, institutionally speaking, Europe has not
yet moved fundamentally beyond the
Framework Agreement. This is not to
diminish the value and importance of what has
been achieved.
To paraphrase the most famous quote in space

history, it may not be the giant leap hoped for,
but it is a small step forward opening up the
prospect of more steps in the same direction.
Security is also high on the agenda in Europe,
space is increasingly playing an indispensable
role in that context, and the flagship projects
may well turn out to prove that the best way to
deal with these issues would be by allowing
more space for integrated decision-making at
a European level, in which case both the
European Union and ESA will be
indispensable players – or at the very least
indispensable vehicles for the sovereign
member states to ensure their individual
interests would not unduly obstruct the
overarching European interests in security,
space, and in space security.
Chinese Intentions in Space:
A Historical Perspective for Future Cooperation
Gregory Kulacki
Senior Analyst and China Project Manager, Global Security Program, The Union of Concerned Scientists
The United States (U.S.) is opening a new Cox Commission concluded many of the
dialogue with China on cooperation in space alleged illegal transfers of American space
that includes human space flight. The technology occurred in the wake of “the
announcement appeared in the Joint Statement Reagan administration’s decision to permit
issued by U.S. President Obama and Chinese satellite launches in the PRC” and that the
President Hu in Beijing, China on 17 factors that led to the Reagan decision, which
November 2009. The two leaders also agreed was left unaltered by subsequent
“the two countries have common interests in administrations, were “no longer applicable.” 4
promoting the peaceful use of outer space and The U.S. Congress and the Executive branch
agree to take steps to enhance security in outer responded by enacting highly restrictive
space.” 1 These are significant shifts in U.S. export control laws and regulations that ended
civilian and military space policy. The U.S. U.S. - China cooperation in commercial
ended cooperation in space with China more satellite launches and prevented cooperation in
than a decade ago 2 and consistently refused to civilian space exploration. 5
discuss Chinese concerns about security in
outer space. Just a few months later, in March 1999, the
Chinese government refused to support a
In January 1999, a Select Committee of the program of work at the United Nations (UN)
U.S. House of Representatives chaired by Conference on Disarmament (CD) because it
Representative Christopher Cox issued its did not include negotiations on the Prevention
Report on U.S. National Security and of an Arms Race in Outer Space (PAROS). 6
Military/Commercial Concerns with the The United States repeatedly opposed opening
People’s Republic of China (PRC). The report such a discussion, insisting on many occasions
claimed “The PRC (China) has stolen or during the last ten years “there is no arms race
otherwise illegally obtained U.S. missile and in outer space” and therefore no need to
space technology that improves the PRC’s
military and intelligence capabilities.”3 The
p. xii, http://www.access.gpo.gov/congress/house/hr105851
(accessed January 2010).
1 4
The White House Office of the Press Secretary, “U.S.-China Ibid. p. xxiv.
5
Joint Statement,” 17 November 2009, Beijing, China, Joan Johnson-Freese, “Becoming Chinese: Or, How U.S.
http://www.whitehouse.gov/the-press-office/us-china-joint- Satellite Export Policy Threatens National Security,” Space
statement (accessed November2009). Times, January/February 2001. Also, see Joan Johnson-
2
Primarily consisting of U.S. government permission to allow Freese, “Alice in Licenseland: U.S. Satellite Export Controls
commercial space activities, such as satellite launch services, Since 1990,” Space Policy 16: 3 (2000).
6
consulting and satellite and component purchases. Statement by H. E. Mr. Li Changhe, Ambassador for
3
Select Committee of the U.S. House of Representatives, Disarmament Affairs of the People’s Republic of China,
Report on U.S. National Security and Military/Commercial Plenary Meeting of the Conference on Disarmament, 27 May
Concerns with the People’s Republic of China Volume III, 1999, Geneva, Switzerland, http://www.nti.org/db/china/
U.S. Government Printing Office, Washington, D.C., 1999. engdocs/lichangh_0599.htm (accessed December 2009).
102 Gregory Kulacki/Chinese Intentions in Space: A Historical Perspective for Future Cooperation
discuss space security issues in the CD. 7 In Command is likely aware of the limited value
June 2009, the U.S. and China agreed to form of many existing U.S. assessments of Chinese
an ad-hoc committee in the CD to discuss intentions in space, which often lack
PAROS. The change in the U.S. position on credibility because they are based on
space in the CD is consistent with the questionable information from a small set of
agreement in the U.S. - China Joint Statement poorly evaluated Chinese sources. 11 The
to “take steps” on space security. unwarranted concern generated by U.S.
analysts over the comments of Chinese
These shifts in U.S. civilian and military space General Xu Qiliang on 1 November 2009 is a
policy towards China are supported by the good example. Xu was discussing general
head of the U.S. Strategic Command, General trends in the development of military space
Kevin Chilton. Just before President Obama’s technology in the context of comments on the
trip to China, the general told reporters that 60th anniversary of the People’s Liberation
China was “on a fast track to improving Army Air Force (PLAF). American press
capabilities,” that space was “a competitive accounts, took highly edited fragments of
domain” and that the United States needed “a Xu’s full remarks out of context, making it
forum that provides an open dialogue between appear the head of the Chinese Air Force said
our nations.” 8 General Chilton hopes the new war in space was inevitable, which he did
dialogue with China will help the United not. 12
States “understand exactly what China’s
intentions are.” 9 The chief coordinator of U.S. The new willingness to talk about cooperation
military activities in space admitted “where in space is a welcome sign that both the U.S.
they are heading is one of the things that a lot and China recognize the undesirable
of people would like to understand better.” 10 consequences of maintaining the post-Cox
Commission status-quo. If the bilateral
General Chilton’s open-minded approach to dialogue on space is to succeed, both sides
Chinese intentions is at odds with many U.S. need to be prepared to manage the inevitable
analysts of China’s space programs, who
claim to know that Chinese investments in 11
Gregory Kulacki, “Anti-Satellite (ASAT) Technology in
space, including the large sums spent on their Chinese Open-Source Publications,” Union of Concerned
human space flight program, are guided by Scientists, Cambridge, Massachusetts, 9 June 2009,
military objectives. The head of U.S. Strategic http://www.ucsusa.org/nuclear_weapons_and_global_security
/international_information/us_china_relations/anti-satellite-
asat.html (accessed December 2009).
12
7
Analysts are made to appear to sanction the inaccurate
The most notable among these was the statement of the interpretation that Xu’s remarks exposed hitherto
Delegation of the United States of America to the Conference unpublicized Chinese plans for space warfare. See Colin
on Disarmament on 13 June 2006, which states: “The Cold Clark, “China Declares Space War Inevitable,”
War is over, Mr. President, and there is no arms race in outer http://www.dodbuzz.com/2009 /11/04/china -declares-space-
space. Thus there is no – repeat, no – problem in outer space war-inevitable (accessed December 2009). The original story
for arms control to solve.” The statement was delivered by clearly indicates Xu was referring to longstanding public
John Mohanco, then the Deputy Director of the U.S. State Chinese discussions of trends in the militarization of outer
Department’s Office of Multilateral Nuclear and Security space, not plans for space war or space weaponization. See
Affairs, http://www.reachingcriticalwill.org/political/cd/ “China’s PLA Eyes Future in Space, Air: Air Force
speeches06/13JuneUS.pdf (accessed December 2009). Commander,” Xinhua General News Service, Beijing, China,
8
Phil Stewart, “U.S. Eyes Intent of China’s Space Programs,” 1 November 2009, http://eng.mod.gov.cn/TopNews/2009-
Reuters 3 November 2009, http://www.reuters.com/ 11/02/content_4099975.htm (accessed December 2009). An
article/scienceNews/idUSTRE5A25XG20091103 (accessed extended Chinese language account of the full press
December 2009). conference from which the quotes in the prior source are
9
Ibid. derived is available at http://news.mod.gov.cn/
10
Ibid. headlines/2009-11/01/content_4099571.htm.
difficulties and frustrations of continued Chinese analysts are beginning to use the
miscommunication and misunderstanding. For word “deterrence” the same way their
example, the United States and China began a American counterparts do. Ironically, this
similar dialogue on nuclear weapons nearly accommodation to the American nuclear
twenty years ago, but the participants still vernacular is producing more confusion. Some
argue over the meaning of basic concepts, like American analysts, mistakenly according to
deterrence. 13 China’s nuclear weapons experts the Chinese, are interpreting changes in their
have an institutionalized aversion to the use of use of terminology as a sign China is changing
the Chinese word for deterrence “weishe.” its nuclear posture. 15
Elder Chinese leaders do not want them to use
deterrence to describe the purpose of Chinese The American side should prepare for the
nuclear weapons because they associate the upcoming dialogue with China on space by
concept with the “nuclear blackmail” they learning more about the history of the Chinese
believe China experienced at the hands of the space program. Familiarity with the choices
Americans in the 1950s. 14 Today, younger China made in the past, as well as how and
why those choices were made, should help the
American participants be more effective in
13
The Committee on the U.S. - Chinese Glossary of Nuclear meeting whatever objectives they set for the
Security Terms, composed of members of the U.S. National talks. The best way to determine where China
Academy of Science Committee on International Security and might be heading is to understand more about
Arms Control (CISAC) Policy and the Chinese Scientists
Group on Arms Control (CSGAC) negotiated for months over where they have been.
the inclusion of the term “limited deterrence” in their English-
Chinese, Chinese-English Nuclear Security Glossary. The aim
of the glossary is to “reduce the likelihood of
misunderstanding, and to remove barriers to progress in The 1980s: The Formative Decade for
exchanges and diplomatic, cooperative and other activities Contemporary Chinese Space Policy
where unambiguous understanding is essential.” CISAC and
CSGAC have been meeting for almost twenty years. In the
end, the two sides agreed to disagree, saying it was “a term China’s contemporary space capabilities,
used by some scholars to describe a form of deterrence. including the anti-satellite (ASAT) interceptor
However, there is no consensus on the definition.” This may tested in January 2007 and their human space
seem a small matter, but some of the scholars they refer to in
the definition argue that China is in the process of changing flight program, were made possible by a 1986
its nuclear posture from a “minimal” to a “limited” deterrent. leadership decision to make an initial 10
This change could have grave implications for U.S. billion Chinese Yuan (or Renminbi, RMB)
perceptions of Chinese intentions regarding the alert status
and possible use of their nuclear weapons. Committee on the investment in seven key areas of advanced
U.S. - Chinese Glossary of Nuclear Security Terms, National technology, including aerospace. 16 This
Research Council, “English-Chinese, Chinese-English
Nuclear Security Glossary,” The National Academies Press,
Washington, D.C., 2008, http://books.nap.edu/catalog.php?
record_id=12186 (accessed January 2010). the Carnegie Endowment for International Peace and
14
This was the unanimous response from a panel of eight Tsinghua University held at Tsinghua University.
15
leading Chinese experts on nuclear strategy: Duan Zhanyuan, A description of the ongoing debate among scholars can be
Second Artillery of the People’s Liberation Army; Fan Jishe, found in Stephanie Legge, “Going Beyond the Stir: The
China Academy of Social Sciences; Guo Xiaobing, China Strategic Realities of China's No-First-Use Policy,” NTI Issue
Institute of Contemporary International Relations; Hu Yumin, Brief, December, 2005, http://www.nti.org/e_research
China Institute of International and Strategic Studies; Li Bin, /e3_70.html (accessed December 2009). Legge notes the
Tsinghua University; Sun Xiangli, China Academy of origins of the linguistic roots of the suspected Chinese posture
Engineering Physics; Teng Jianqun, China Institute of change in Alastair Iain Johnson, “China's New Old Thinking:
Intemational Studies; and Yang Mingjie, China Institute of The Concept of Limited Deterrence,” International Security
Contemporary International Relations. These experts were 20: 3 (1995-1996).
16
responding to a question on the Chinese aversion to the term Gregory Kulacki and Jeffrey Lewis, “A Place for One’s
“deterrence” from James Acton at a workshop sponsored by Mat,” American Academy of Arts and Sciences, Cambridge,
decision was a direct result of a personal “Man of the Year.” Time noted “his
appeal to Deng Xiaoping by Chinese scientists continuing reform of China and Marxism
who were closely associated with China’s holds more promise for changing the course of
nuclear weapons and ballistic missile history than anything else that occurred during
programs. 17 That appeal was contained in a 1985.” 20
letter written in response to U.S. President
Ronald Reagan’s 23 March 1983 speech The Chinese scientists who persuaded Deng
announcing the Strategic Defense Initiative Xiaoping to commit a large block of the
(SDI). 18 nation’s limited technical and fiscal resources
to an ambitious space program believed that
Influential Chinese defense community SDI was “not just a military program, but a
scientists were not writing to Deng because of far-reaching political striving to preserve
a concern about the possibility of a future American superiority.” 21 The military
military conflict with the United States. The implications of SDI were not the “real
contents of their letter and the state of U.S. - objective” behind a program they saw as an
China relations at the time it was written make effort to “push forward new advanced
this clear. The United States and China were technologies and national economic
22
cooperating in efforts to contain the Soviet development.” The Chinese leadership,
Union, and the United States was providing attentive to the concerns of their scientific
intelligence, technology and training to the advisers, wanted to ensure China kept pace in
Chinese military. President Reagan received a the international competition for technological
warm welcome in what he described as the and economic power. Military space
“so-called Communist China” during his visit capability was a secondary concern. This was
in April 1984. Reagan proclaimed, “My visit reflected in the “Outline for National High
to China has convinced me that our future is Technology Planning” that codified the
bright,” and “America is on the edge of a new scientists concerns into national policy. 23 The
era of peace, prosperity and commerce.” 19
While the two nations were not allies, U.S.
20
and Chinese mutual threat perceptions were George J. Church, “Deng Xiaoping,” Time 6 January 1986,
http://www.time.com/time/subscriber/personoftheyear/archive
low. The year the letter was sent to Deng /stories/1985.html (accessed November 2009). It was the
Xiaoping Time magazine made him their second time Deng received high praise from Time, which
named him “Man-of-the-Year” in 1978 for “leading one-
quarter of mankind quickstep out of dogmatic isolation into
the late 20th Century and the life of the rest of the planet.”
From the Time archive, “Person of the Year,” Time 1
Massachusetts, 2009, pp.23-24, http://www.amacad.org/ January1979, http://www.time.com/time/subscriber/
publications/spaceChina.aspx (accessed December 2009). personoftheyear /archive/stories/1978.html (accessed
17
The scientists were Wang Daheng, Chen Fangyun, Wang December 2009).
21
Ganchang and Yang Jiachi. An excellent English language Xiaohua Fan, The Inside Story of Chinese Space Policy-
summary of their contributions to China’s nuclear and Making (China Literature and History Publishing House,
ballistic missile programs is contained in Evan A. 2005): 262-269. Two of the four authors of the letter detail
Feigenbaum, China’s Techno-Warriors: National Security their political, economic and technological motivations for
and Strategic Competition from the Nuclear to the investments in space in an article entitled: “The Science of
Information Age (Stanford University Press, 2003): 154–157. Technology and Our National Aerospace Technology
18
Xiaohua Fan, The Inside Story of Chinese Space Policy- Development,” Journal of the Chinese Academy of Science 4
Making (China Literature and History Publishing House, (1986), shortly after they transmitted their letter to Deng
2005): 262 - 269. Xiaoping. The article can be found in Yang Jiachi, The
19
Robert A. Jemian, Laurence I. Barrett and Evan Selected Works of Yang Jiachi (China Astronautic Publishing
Thomas,“An Opening to the Middile Kingdon,” Time 14 May House, 2006): 102-109.
22
1984, http://www.time.com/time/magazine/article/ Ibid.
23
0,9171,955255, 00.html (accessed November 2009). Ibid.
Outline placed a priority on civilian and dual- priority since September of 1977. 28 The
use applications: a priority that continues to willingness of the Carter administration to
guide Chinese high technology investments, provide technological assistance to China was
including aerospace investments, according to encouraging and the immediate need pressing,
language in the current Chinese national so Deng took the extraordinary step of making
plan. 24 a direct personal appeal to the United States
against the wishes of his scientific advisers.
During Reagan’s visit, Deng expressed They wanted to do it on their own. Fortunately
frustration that the U.S. was unwilling to for them, the negotiations broke down.
provide China with access to space Afterward, Deng and China’s aerospace
technology. 25 Six year’s earlier, U.S. leaders came to believe that China could not
President Carter’s National Security Advisor, rely on the U.S. for meaningful assistance in
Zbigniew Brzezinski, brought what he developing their own space technology. They
described as “the most high powered went ahead with the communication satellite
science/technology delegation ever sent by the on their own. There were repeated setbacks
United States to a foreign country” when he and delays, but these proved to be invaluable
visited China in 1978 for negotiations leading learning experiences. 29 China eventually
to the establishment of diplomatic relations. 26 succeeded in placing their first
NASA Administrator at that time, Robert communications satellite into space on 16
Frosch, was a member of that delegation. April 1984, ten days before Reagan arrived in
Deng Xiaoping took the occasion to ask the China. 30 Deng may have been expressing
United States for help developing China’s first frustration when he chided Reagan for not
communication satellite. Their own effort had providing more access to American space
stalled and Deng wanted to jump start a long technology, but he may also have been trying
distance education effort designed to address to let him know China could succeed without
the catastrophic damage to Chinese secondary it.
and higher education caused by the Cultural
Revolution of 1966-1976. 27 China’s disappointment in American
reluctance to share advanced space technology
The Carter administration was willing to sell has a historical precedent in the Soviet
China a satellite, but China wanted help Union’s hesitant assistance to China’s nuclear
overcoming the specific technical difficulties
inhibiting progress on their existing 28
Chinese General Zhang Aiping, the Director of the
communications satellite program. It had been Committee on Science, Technology for National Defense
a top Chinese national technology policy (CSTND) first expressed his intention to make it a priority
during a meeting of the Chinese Academy of Space
Technology (CAST) in June 1975. Jisheng Li, Far Road to
24
An English Language copy of the complete document is Heaven: Record of Rocket and Satellite Launches (Central
available on-line at http://www.cstec.org/uploads/files/ Party School of the Chinese Communist Party Publishing
National%20Outline%20for%20Medium%20and%20Long% House, 2005): 151.
29
20Term%20S&T%20Development.doc (accessed December Carter’s NASA Administrator Robert Frosch felt that the
2009). lesser risk was in helping China with their own
25
Jeff Gerth and Eric Schmidt, “The Technology Trade: A communications satellite, since that would probably mean
Special Report; Chinese Said to Reap Gains In U.S. Export they learned less than if they did it themselves. Moreover, in
Policy Shift,” New York Times 19 October 1998. his view there were no great secrets in the comsat
26
Richard Masden, China and the American Dream: A Moral (commercial satellite) business that cooperation would risk
Inquiry (University of California Press, 1995): 134. compromising. Personal communication with the author.
27 30
Xiaohua Fan,. The Inside Story of Chinese Space Policy- Xiaohua Fan,. The Inside Story of Chinese Space Policy-
Making (China Literature and History Publishing House, Making (China Literature and History Publishing House,
2005): 199-201. 2005): 224-232.
and ballistic missile programs– assistance technologically advanced nation, the United
abruptly canceled shortly after it began. States., which they imagined was about to
Chinese leaders call attention to this precedent invest hundreds of billions of dollars in a new
when they compare the human spaceflight generation of space-related technologies.
program to their earlier effort to develop
nuclear weapons and ballistic missiles. 31 At the same time, China made a diplomatic
Although in practice human spaceflight has push for international restrictions on the
shown little military value, the common military use of space technology. In March
denominator between the two programs 1985, Chinese Ambassador Hu Xiaodi
(nuclear weapons/ballistic missiles and delivered China’s first official position paper
spaceflight) is that in both instances the on the peaceful use of outer space to the CD.
Chinese were forced to master the It stated “China fully subscribes to the
technologies on their own, or at least without objective of the non-militarization of outer
substantial foreign assistance. The comparison space and the exclusive use of outer space for
is meant to be an object lesson for the Chinese peaceful purposes.” Non-militarization was
in the continuing importance of indigenous understood to mean “both space weapons with
technological development, even in this era of actual lethal or destructive power and military
globalization and interdependence. This satellites of all types from limited and
understanding of the importance the current prohibited.” China was willing to postpone
leadership attaches to their space program is discussions on a ban on all military uses in
consistent with the concerns expressed in the lieu of an immediate effort to ban the
past by the letter-writing Chinese scientists “development, testing, production,
who got it started. Those scientists understood deployment and use of any space weapons”
how technologically deficient China was in including “all devices or installations either
comparison to the world’s most space, land, sea, or atmosphere-based, which
are designed to attack or damage spacecraft in
31
Many American observers see the connection in military outer space, or disrupt their normal
terms and describe the Chinese human spaceflight program as functioning or change their orbits.” 32
a “military run” program. One example, among scores of
others, was an editorial published in The Dallas Morning
News shortly after China put their first person in space. The Had the United States, China and the other
editorial was accompanied by a picture of military officers members of the CD negotiated such a
surrounding the Shenzhou V space capsule. Standing at the prohibition, the research and development
front of the capsule were Chinese astronaut Colonel Yang
Liwei and Chinese President Jiang Zemin, both dressed in (R&D) effort that produced the ASAT
their military uniforms. The editorial notes: “It is important to interceptor China tested in January of 2007,
observe that Beijing’s space program is not run by the and other suspected Chinese counter space
Chinese equivalent of the National Aeronautics and Space
Administration, but by the People’s Liberation Army. technologies, would have been legally
Following the taikonaut’s return to Earth, the countr’s science proscribed. In the absence of an agreement,
and technology minister called the event a “glorious Chinese concerns about ASAT weapons
achievement” as significant as China’s explosion of its first
atomic and hydrogen bombs. The comparison is telling.” See gradually evolved from observations and
“Red Star Rising: Space Venture Makes China a True analysis of foreign ASAT systems to
Competitor,” Dallas Morning News 17 October 2003. A
similar assessment of the military character of China’s human
spaceflight program appeared on the eve of U.S. President
32
Obama’s visit to China: See Gordon Chang, “The Space Race See China’s Basic Position on the Prevention of an Arms
Begins. Should the U.S. and China Cooperate,” Forbes.com, Race in Outer Space Conference on Disarmament, CD/579,
http://www.forbes.com/2009 /11/05/space-arms-race-china- 19 March 1985 in Jeffrey Lewis, The Minimum Means of
united-states-opinions-columnists-gordon-g-chang.html Reprisal: China’s search for Security in a Nuclear Age (The
(accessed December 2009). MIT Press, 2007): 209-210.
diplomatic efforts to restrain them, and produced their ASAT interceptor in the mid-
eventually to R&D programs of their own. 1980s. 37
China had been watching the development of By the end of the1980s, China had committed
U.S. and Soviet ASAT systems since the early to a long-term R&D effort that would
1970s. 33 By the end of the decade, they noted eventually lead to the acquisition of the
then that while the Soviet Union seemed to be civilian and military space capabilities they
farther ahead in ASAT technology, U.S. R&D are bringing on-line today. China expressed
on missile defense had also produced “strong interest” in international negotiations
capabilities that could be used to “track, to control the military use of space
approach, discriminate and destroy” technology, including all types of ASAT
satellites. 34 These early observations led weapons, but also set about developing the
China’s defense aerospace experts to same military space capabilities they sought to
anticipate, several years before Reagan’s SDI have controlled. 38 When China made these
speech, “technological breakthroughs… in commitments, neither the technologies nor the
infrared sensing, adaptive optics, lasers, negotiations to control them appear to have
precision guidance, micro-computing, been specifically intended to resolve concerns
aerospace, particle beam and other weapons about a possible military conflict with United
that will lead to a fundamental change in States. For understandable reasons, many
strategic defenses.” 35 China’s scientists also Americans do not see it that way today.
predicted these technological changes would
“undermine arms control efforts between the
United States and Soviet Union that restrict Historical Perspective
the development of missile defense and ASAT on American Perceptions
systems.” 36 This early connection between of Chinese Intentions in Space
missile defense and ASAT technology is a
persistent theme in Chinese discussions about American perceptions of Chinese intentions in
the two technologies that continues today. The space have a history of their own that is
ASAT interceptor China tested in 2007 uses disconnected from the history of China’s
the same basic technologies as those used in space programs. When Ronald Reagan agreed
U.S. missile defense interceptors. China to allow China to launch U.S. commercial
appears to have begun the R&D program that communications satellites in September of
1988, U.S. threat perceptions of China were
even lower than they had been when he visited
China four years earlier. Time magazine made
fun of a Chinese military “whose power and
33
Gregory Kulacki, “Anti-Satellite (ASAT) Technology in prestige have been diminished by Chinese
Chinese Open-Source Publications,” Union of Concerned leaders determined to de-emphasize military
Scientists, 9 June 2009, http://www.ucsusa.org/
nuclear_weapons_and_global_security/international_informat
37
ion/us_china_relations/anti-satellite-asat.html (accessed Gregory Kulacki and Jeffrey G. Lewis, “Understanding
December 2009). China’s Antisatellite Test,” The Nonproliferation Review 15:
34
Ji Shipan and Li Minghu, “Kongjian Zhanzheng yu Jiguang 2 (2008).
38
Wuqi: Dandao Daodan Fangyu de Fazhan Qushi” (Space The Chinese wanted to ban all military uses of space. This
Warfare and Laser Weapons: Trends in the Development of was a much stronger arms control measure than what China
Missile Defense),” Xiandai Fangyu Jishu (Modern Defense and Russia are currently proposing. Links to the UN
Technology) 3 (1979): 1-31. documents on the current Chinese-Russian proposal can be
35
Ibid. found on-line at http://www.reachingcriticalwill.org/legal/
36
Ibid. paros/osdocuments.html.
might in favor of agricultural and industrial Chinese leader Deng Xiaoping was instantly
reform.” 39 The U.S. security concern at the transformed from Time magazine’s reform-
time was Chinese missile sales. Reagan minded “Man-of-the-Year” into the “Butcher
administration officials, including Defense of Beijing.” In the next few years, the fall of
Secretary Frank Carlucci, were “fully the Berlin Wall and the collapse of the Soviet
satisfied” their discussions with Deng Union left China as the only major nation
Xiaoping had resolved those concerns. ruled by a communist party. Over the next
Sanctions imposed in the wake of missile sales decade, Americans developed “a picture of
to Iran were lifted, and the U.S. continued to China solely as a country of brutal dictators,
provide assistance and equipment to the beleaguered dissidents and corrupt deal-
Chinese military. 40 makers intent on using its economic clout and
its military might to dominate its neighbors
Less than a year later American threat and challenge the United States for regional
perceptions changed dramatically after the supremacy.” 42
Chinese military used lethal force to repress
anti-government demonstrations throughout Changing American perceptions of China did
China in June of 1989. What is known in the not bring a halt to U.S. commercial satellite
United States as the “Tiananmen Massacre” launches from China until 1998. Initially this
was a massive may have been due to the temporary shortage
nationwide military The best way to of U.S. launch capacity created by the loss of
campaign to put the Space Shuttle Challenger in 1986. Later in
determine
down protests in the next decade, the Clinton administration
major cities where China continued to permit the launches because it
throughout China. may be believed the policy encouraged China to keep
Televised images of heading is to the promise not to sell missile technology it
the violence in understand made just before President Reagan authorized
Beijing on the more about them. 43 Republican opponents on Congress,
evening of June 3 however, began to define Chinese space
where they
and the early programs as a grave threat to U.S. national
morning of June 4 have been. security and charged President Clinton “sold
horrified the to a Chinese Military Intelligence front the
American public. CNN reporter Mike Chinoy, technology that defense experts argued would
who was responsible for getting those images give Beijing the capacity to blind our spy
out of China, later called it the defining satellites and launch a sneak attack.” 44
moment in American perceptions of China. 41
speech/pre%20sept%2004%20speeches/chinoy.html
39
Michael S. Serrill, Sandra Burton and Jaime A. FlorCruz, (accessed November 2009).
42
“China Sprucing Up the Troops.” Time 11 July 1988, Ibid.
43
http://www.time.com/time/magazine/article/0,9171,967873,0 Jeff Gerth and David Sanger, “How Chinese Won Rights to
0.html (accessed 29 November 2009). Launch Satellites for U.S,” New York Times 17 May 1998,
40
See Don Oberdorfer, “U.S. and China Mark 10 Years of http://www.nytimes.com/1998/05/17/us/how-chinese-won-
Ties,” New York Times 16 December 1988; “China Assures rights-to-launch-satellites-for-
Carlucci On Mideast Arms Sales; Peking Seen Curbing us.html?scp=2&sq=Rubin&st=nyt&pagewanted=all (accessed
Missile Supply Role,” New York Times 8 September 1988; November 2009).
44
and “U.S. to Lift Sanctions Against Beijing; Chinese Agree to William Safire, “Essay; U.S. Security for Sale,” New York
Accept Peace Corps,” New York Times, 10 March 1988. Times 18 May 1998, http://www.nytimes.com
41
Mike Chinoy, “Speech Before the Los Angeles World /1998/05/18/opinion/essay-us-security-for-sale.html?scp=5
Affairs Council,” 18 April 1997, http://www.lawac.org/ &sq=China&st=nyt (accessed November 2009).
This claim was made in May 1998, when defeating the U.S. military in a high-tech and
China had 14 satellites in orbit including ten space-based future war.” 47
communication satellites, mostly of foreign
manufacture, that were used primarily for Prominent American analysts of China’s
television, phone and fax services. China also military modernization program believed
had one weather satellite and one scientific these methods and strategies were inspired by
satellite. 45 Also, China’s space investments, concerns within the Chinese military about the
and the Chinese military’s space work force, American use of space technology in the 1991
were developing the human spaceflight Gulf War. 48 One of the most frequently was
program, which had yet to launch the first Mark Stokes, whose 1999 U.S. Army War
experimental capsule and would not put an College publication on Chinese strategic
astronaut into space for another five years. modernization was cited frequently by
Even though China had mastered the use of American analysts. Stokes called the supposed
recoverable reconnaissance satellites and was Chinese preoccupation with military space
developing experimental positioning technology “China’s Gulf War Syndrome.”
satellites, 46 they had no demonstrated counter He described it “a rude awakening for the
space capabilities. Yet the “Space Pearl
Harbor” narrative quickly emerged as the
consensus interpretation of Chinese intentions
among U.S. analysts. In January 2001, the 47
Report of the Commission to Assess U.S. National Security
supposed Chinese threat was highlighted in Space Management and Organization, 11 January 2001,
the Report of the Commission to Assess U.S. p. xiv and p. 22, http://www.fas.org/spp/military/commission/
National Security Space Management and report.htm (accessed January 2010).
48
The claim appears in many American analyses. Some of the
Organization– a Congressional commission more prominent are James A. Lewis, China as a Military
chaired by Donald Rumsfeld until President- Space Competitor, Center for Strategic and International
elect George W. Bush nominated him to serve Studies, August 2004, http://www.csis.org/media/csis/pubs/
040801_china_space_competitor.pdf (accessed January2010);
as Secretary of Defense. The Space Phillip Saunders, Jing-dong Yuan, Stephanie Lieggi and
Commission report claimed: “China’s military Angela Deters, China’s Space Capabilities and the Strategic
is developing methods and strategies for Logic of Anti-Satellite Weapons, Center for Non-proliferation
Studies, July 2002, http://cns.miis.edu/stories/020722.htm
(accessed January 2010); David O. Meteyer, The Art of
Peace: Dissuading China from Developing Counter-Space
Weapons, INSS Occasional Paper 60, USAF Institute for
45
The communications satellites were: Apstar 1, 3 and 4 (APT National Security Studies, USAF Academy, Colorado, August
Satellite); Asiasat 1, 2, 3S, and Asiasat G (Asia Satellite 2005; Mark A. Stokes, “Space, Theater Missiles, and
Telecom); Dongfanghong 3R (China Telecom Satellite Electronic Warfare: Emerging Force Multiplier for the PLA
Broadcasting); Sinosat-1 (Sino Satellite Communications); Aerospace Campaign, “presented at Chinese Military Affairs:
and the Chinastar-1 (Zhongwei 1) built by Lockheed, owned A Conference on the State of the Field, 26-27 October 2000,
and operated by China Satellite Communications. The Fort McNair, Washington DC, Aerospace I Panel; and Mary
weather satellite was the Feng Yun 2B (China National Space C. FitzGerald, “China’s Evolving Military Juggernaut,” in
Administration), and the scientific sateliite was the Shijian 4 China’s New Great Leap Forward: High Technology and
(CAST). See Aviation Week & Space Technology 148: 2 Military Power in the Next Half-Century, Hudson Institute,
(1998): 141-147; and Aviation Week & Space Technology 2005. The assertion was also a focal point of a review of
154: 3 (2001): 167-176. Also, see the Union of Concerned China’s space program presented by Dean Cheng of the
Scientist Satellite Database, which is available at Center for Naval Analysis (CNA) at the Henry L. Stimson
http://www.ucsusa.org/nuclear_weapons_and_global_security Center on 3 March 2005. A somewhat less definitive
/space_weapons/technical_issues/ucs-satellite-database.html agreement with this consensus appears in Joan Johnson-
(accessed January 2010). Freese, “Strategic Communication with China: What Message
46
This includes the FSW recoverable satellite program which about Space?” China Security 2 (2006): 51,
was used for a variety of experiments as well as photo http://www.wsichina.org/attach/china_security2.pdf#search='
reconnaissance, the Ziyuan imaging satellites developed in Strategic%20Communication%20with%20China:%20Space
cooperation with Brazil and the Beidou positioning satellites. (accessed January 2010).
CMC [China’s Central Military Commission] Space Commission Report, in the Stokes’
and the military-industrial complex.” 49 study and in many other U.S. analyses of
China’s space programs are not from the
However, the history of China’s space scientists who work in the aerospace
program reviewed earlier in this paper community and advise the senior leadership of
demonstrates that Stokes was mistaken. There the Chinese “military-industrial complex.”
is ample documentary evidence that the The quotations are from a very different set of
defense scientists who ran China’s “military Chinese authors writing for publications with
industrial complex” anticipated the military a different purpose and a different audience.
applications of space technology the U.S.
demonstrated in the Gulf War more than a The Gulf War was a global media
decade before that war started. 50 They phenomenon that carried the now iconic
petitioned the Chinese government for the televised images of “smart bombs” to
funding to develop their own military space hundreds of million of Chinese viewers for
capabilities five years before it started. And at whom television itself was advanced
the time these senior figures in China’s technology. In the wake of this media event, a
“military industrial complex” wrote their new and very different group of Chinese
petition to the most influential military authors began writing about military space
decision-maker in the CMC, Deng Xiaoping, technology for a new audience. The authors
the U.S. was assisting the development of were not aerospace
Chinese military capabilities. Mutual threat …China made experts or strategists
perceptions were low and the probability of a
a diplomatic writing for Chinese
U.S. - China military conflict was remote. leaders, but non-
push for experts writing for
The mistake Stokes makes in interpreting international average Chinese
Chinese thinking about space is revealing, and restrictions on readers who were,
it is one that is repeated by American analysts the military use like many others all
who cite Chinese publications without of space over the world,
considering their historical, institutional and technology. rudely awakened by
social context. The claim that China was the images of modern
acquiring the capability to launch a “Space warfare they saw on
Pearl Harbor” is based on American television. Their articles were part of a
interpretations of the selected quotations of political campaign meant to reassure both
Chinese military personalities culled from soldiers and officers that the Chinese
Chinese military publications and press leadership was aware of the changing nature
interviews. The quotations used to of modern military technology and would take
demonstrate Chinese intent that appear in the steps to prepare the PLA to respond to these
developments, but without saying in a detailed
49
Mark A. Stokes, China’s Strategic Modernization: or authoritative way how it would respond. 51
Implications for the United States, Strategic Studies Institute, American analysts were confusing Chinese
U.S. Army War College, September 1999, p. 12. military space policy with Chinese military
50
Gregory Kulacki, “Anti-Satellite (ASAT) Technology in
Chinese Open-Source Publications,” Union of Concerned propaganda. This confusion is still a problem
Scientists, 9 June 2009, http://www.ucsusa.org/nuclear_ today.
weapons_and_global_security/international_information/us_c
hina_relations/anti-satellite-asat.html (accessed December
2009). This study is based on over 1,500 source articles over a
51
four-decade period. Ibid.
Lesson for Policy Makers: knowledge about the Chinese ASAT test in
Let the Scientists Do the Talking 2007, which some ministry functionaries
originally dismissed as U.S. government
The dialogue on cooperation and the peaceful slander. 52 The U.S. State Department
use of outer space President Obama and enforcement of discriminatory U.S. legal
President Hu agreed to begin in their Joint restrictions on space cooperation with China is
Statement of November 17, 2009 will not last interpreted by many Chinese space scientists
for long if both sides continue to be suspicious and engineers as a sign of persistent U.S.
of the other’s intentions. Before the dialogue hostility towards China’s efforts to join the
begins in earnest, and international community of spacefaring
before any agreement China had nations. 53 This explains, in their view, why
on cooperation is been watching China is not treated on an equal basis with
signed, both sides other less-developed Asian space programs,
should take steps to
the specifically those of Japan, India, Malaysia
correct past mistakes. development and South Korea, which all have cooperative
of the U.S. and relationships with NASA.
Chinese military Soviet ASAT
propaganda on space system since A look back at the record of Chinese decisions
may not be an the early about space suggests that neither the PLA nor
indication of the the Foreign Ministry has played a decisive
intentions driving
1970s. role in the formation and direction of Chinese
Chinese space policy, space policy. The limited historical materials
but it is a cause for concern. Repeated available on Chinese space policy, from the
unsettling statements from military officers decision to launch China’s first satellite in the
published in Chinese newspapers, magazines early days of the People’s Republic to current
and journals have the same effect on U.S. Chinese plans to build their own space station,
policy-makers as the rhetoric from the U.S. suggest that China’s scientists guided Chinese
Air Force about “space dominance” has on space policy and convinced the Chinese
Chinese policymakers. Because Chinese political leadership to make the investments
leaders are unwilling to censure their military necessary to carry it out. Since this is the
propagandists and American leaders cannot audience most likely to influence Chinese
prevent U.S. space hawks from advocating policymakers, a dialogue on cooperation and
visions of space dominance to Congress, negotiations on space between U.S. and
policy-makers in both nations find it difficult Chinese scientists is more likely to produce
to navigate the maze of heated rhetoric that credible, productive and sustainable outcomes
drives their respective domestic debates over than a dialogue between military officers or
the merits of cooperation and negotiation. diplomats. This is also what we have observed
in the bilateral dialogue on nuclear weapons
Mutual reassurances of peaceful intentions policy.
issued regularly by the Chinese Foreign
Ministry and the U.S. Department of State are 52
David E. Sanger and Joseph Kahn, “U.S. Tries to Interpret
routinely dismissed by both governments as China’s Silence Over Test,” New York Times 22 January
the wishful thinking or disingenuous decorum 2007.
53
of diplomats. In the United States, this Interviews with Chinese space scientists and engineers
conducted by author in China during the course of managing
perception was strongly reinforced by the the China Project of the Union of Concerned Scientists
Foreign Ministry’s apparent lack of between 2002 and 2009.
The publications of both militaries suggest inappropriate expectations that could provoke
they will have difficulty discussing space with Congressional opposition and undermine
the nation they believe to be their most likely progress.
adversary in a future military conflict. This is
especially true of Chinese military The history of China’s space programs
publications because of their propaganda suggests that a U.S. - China dialogue on the
function. Military to military exchanges peaceful uses of outer space is more likely to
should begin with less controversial and less diminish mutual threat perceptions if scientists
technologically complex problems. Adding are at the table. Contemporary Chinese space
space to that agenda is more likely than not to policy is the product of a reaction to a U.S.
derail it. Diplomats will be inclined to see plan for national missile defenses that Chinese
discussions on space as a vehicle for scientists misread as a new Apollo program.
addressing other problems in the bilateral The objective of their subsequent investments
relationship, or to hold the discussions hostage in space was to keep China from falling too
to those problems if they become worse. The far behind the pace of the global space
Clinton Administration’s use of licensing technology leader, primarily because of the
procedures for sensitive space technology as a imagined economic consequences. If the
bargaining chip in a diplomatic effort to science delegation Zbigniew Brezinski
constrain Chinese missile sales is an brought to China in 1978 had been charged
instructive example of how this common with beginning a long-term scientific dialogue
diplomatic practice can go awry. about space technology with their Chinese
counterparts, it is possible the four anxious
scientists who wrote to Deng Xiaoping would
Conclusions have been better informed about the politics of
missile defense in the United States. They
The history of American perceptions of China might have been able
suggests that U.S. Congressional concerns Contemporary to see that SDI was
about technology transfer will continue to be Chinese space more science fiction
the most volatile and disruptive factor in U.S.
policy is the than science. They
- Chinese relations in space. The new dialogue might have been able
on cooperation will be more likely to produce product of a to predict that it
sustainable programs if it is conducted by reaction to a would be
individuals who can apply their scientific U.S. plan for immediately scaled
competencies to the problem of preventing the national missile back and eventually
exchange of technologies the United States defenses that terminated.
wants to protect and the Chinese want to
Chinese
acquire. Given the substantial gap in their Had there been an
respective national capabilities, many scientists on-going relationship
cooperative space endeavors, including human misread as a between Chinese and
spaceflight, are likely to result in transfers of new Apollo American scientists
technology and expertise from the United program. in 1983, the history
States to China. Having scientists organize of China’s space
and conduct the discussions could help both program, as well American perceptions of
parties identify and assess the relative costs Chinese intentions in space, might have taken
and benefits of specific technology transfers a radically different course in a healthier
early in the process. This could help avoid direction. In planning a new relationship with
China in space, this historical perspective

suggests it would be in the best interest of the
United States to consider the long term. The
U.S. Congress and Executive should avoid
making the dialogue on space a hostage of
unrelated troublesome contentions in the
bilateral relationship. They should use
cooperation to build relationships between
Chinese and American scientists and
engineers who share an interest in the peaceful
exploration and utilization of outer space.
Once established, this cross-cultural
community of space scientists and engineers
could help reduce miscommunication and
misunderstanding, especially during moments
of crisis. Dialogue and cooperation may not
produce a bilateral consensus on space
security or space policy, but it can establish
the reliable channels of communication to the
Chinese aerospace community that General
Chilton said the United States Government
needs to better assess Chinese intentions in
space.
Space Situational Awareness Workshop

Summer Space Seminar
Asia, Space, and Strategy Workshop
National Space Forum
Transatlantic Space Cooperation Workshop
Compiled by Eligar Sadeh
Space Situational Awareness Areas of focus at the 2009 workshop included:

Workshop • National and international perspectives
on SSA.
The goal of the Space Situational Awareness • Challenges of the space environment.
(SSA) Workshop is to bring together • Governance issues related to safe and
stakeholders interested in space situational responsible behavior in the space
awareness. This includes practitioners, users environment.
of data, representatives of industry and the • State of SSA data sharing and the U.S.
military, the scientific community, Commercial and Foreign Entities
international organizations, and the satellite- (CFE) Program.
tracking community. These stakeholders • Concepts and capabilities for improved
discuss how needs are changing with SSA, SSA data sharing.
what improvements in SSA capabilities can be • New opportunities in SSA.
achieved in the near-term to medium-term,
and how various stakeholder communities
might better interact to draw on each other’s Summer Space Seminar
strengths.
The Eisenhower Center for Space and Defense
The first workshop was held in 2006. It was Studies organizes the Summer Space Seminar
co-sponsored by the World Security Institute’s to advance two principal goals: (1) to foster an
Center for Defense Information. A workshop education and interest in the interdisciplinary
report can be found at: http://www.cdi.org/ areas of space with the intent to develop space
PDFs/SSAConference_screen.pdf. professionals; and (2) to develop a network of
relations across civil, commercial, and
The second workshop was hosted by Inmarsat military space professionals that will likely
in 2007 and was co-sponsored by the World emerge from the participants. The first
Security Institute’s Center for Defense Summer Space Seminar was held in 2007.
Information and the Secure World
Foundation. A summary of the discussions This seminar exposes participants to the
that took place at the workshop held in 2007 breadth and depth of space activities in the
was published in Space and Defense 2: 1 civil, commercial, and military areas. The
(2008). relationships among these areas are explored
across a number of perspectives – participants
The third workshop was held in 2009. This are exposed to the technology and science of
workshop was hosted by Intelsat and was co- space activities, followed by discussions on
sponsored by the World Security Institute’s the political, legal, economic, and social
Center for Defense Information, the Secure aspects that influence the development and
World Foundation, and the George C. application of the various civil, commercial,
Marshall Institute. A summary of the 2009 and military space activities. The emphasis is
workshop was published in Space and on exchanges among the participants.
Defense 3: 2 (Winter 2009).
118 Eisenhower Center Program Summaries
The Summer Space Seminar is directed countries of the Pacific Basin have in the
toward bringing together a broad group of creation of a stable, predictable, and mutually
future space professionals to lay a foundation beneficial environment in space. Workshop
for a future space policy community in the topics in 2009 ranged from: economic and
military, civilian government, and private political goals for the use of space; improving
sectors. Participants in the program include the safety and stability of the space
students from the U.S. Air Force Academy, environment; deterrence and defense
U.S. Naval Academy, U.S. Military Academy, concepts; and arms control and verification. A
George Washington University, and the summary of the 2009 workshop was published
Massachusetts Institute of Technology. in Space and Defense 3: 2 (Winter 2009).
The seminar serves as a useful forum for

further professional development given that National Space Forum
several of the participants worked, or are
currently employed, as space professionals. The Eisenhower Center for Space and Defense
During the seminar, a great deal of learning Studies organized and held its fourth annual
and socialization takes place among the National Space Forum from 1-2 September
participants to meet the goal to inform and to 2009 in Washington, DC. Panels at the Forum
build connections between future space discussed security issues and space.
professionals.
Specific topics of discussion included:
• An assessment of security challenges
Asia, Space, and Strategy Workshop and threats in the space domain.
• The role of space deterrence in
In 2006, the Eisenhower Center for Space and national policy.
Defense Studies held its first Asia, Space, and • The potential for new approaches to
Strategy Workshop. This effort brought arms control and verification.
together U.S., Canadian, and European experts • The improvement of international
and policy makers from the military, civilian cooperation with allies in Asia and
government, universities, think-tanks, and Europe.
private sectors to discuss the implications of • The role that China plays in space.
current and future Chinese space policy and to • The implementation of national space
investigate areas of possible Sino-U.S. policy in the Obama Administration.
cooperation in space. Beginning in 2007, an
invitation was extended to include Chinese The Forum concluded with discussions on
academics in the discussions. Chinese how to integrate often competing interests into
participation has increased each year since a more cohesive policy and, more importantly,
then, with four attendees from China at the to improve the chances that such a policy can
2009 workshop in Vancouver, Canada. be effectively implemented. Forum panels
represented a number of points of view from
The fourth workshop of 2009 was broadened security, civil, and commercial space.
to include other space powers in the Asia- Proceedings of the National Space Forum
Pacific region. For the first time in the 2009 were published in Space and Defense 3:
workshop series, representatives from 2 (Winter 2009).
Australia and Japan took part. The workshop
focused on common interests that spacefaring
Transatlantic Space Cooperation • Joint priorities in protection of critical

Workshop space infrastructure.
• Transatlantic cooperation on Earth
In 2008, the Eisenhower Center for Space and observations for security and stability.
Defense Studies established the Transatlantic • Future avenues for advancing
Space Cooperation Workshop. This workshop transatlantic cooperation.
series brings together a community of scholars
and experts from the United States and
Europe, including the European Union (EU),
European Space Agency (ESA), and NATO,
to share lessons learned, debate, and network
on joint priorities in civil, security, and
commercial space.
The first workshop was held in Brussels,

Belgium in June 2008. Participants in this
workshop examined U.S., European, and EU
security space priorities and considered
NATO’s space role. Discussions began with
an opening panel where senior U.S., EU, and
NATO officials briefed participants on current
security space priorities before participants
explored issues more in-depth. The goal of the
workshop was to educate senior leadership
from the U.S., EU, and NATO on
philosophies and strategies for collective
space security and deterrence in the 21st
Century. The workshop was successful in
initiating dialogue on harmonizing
transatlantic security space strategies.
The second workshop was held in Berlin,

Germany during September 2009. The 2009
workshop fostered dialogue regarding the
potential for greater cooperation across the
Atlantic to make the most efficient use of
capabilities where possible across civil,
security, and commercial space. A summary
of the 2009 workshop was published in Space
and Defense 3: 2 (Winter 2009).
Issues discussed at the 2009 workshop

included:
• Developments over the past year in
transatlantic space cooperation.
Notes for Contributors to Space and Defense
Space and Defense seeks contributions that further inquiry and intelligently On the basis of the peer reviews for research articles, the academic editors
inform space policy issues. Contributions are welcome from: academic will make a final decision for publication. If required, the author(s) will be
scholars and policy analysts at think tanks and research institutes; senior required to make additional changes and corrections as a result of the
management and policy officials from international and governmental external peer review.
agencies and departments relevant to space issues; military officers and
operators in relevant units, commands, and in staff colleges and service Tables and Figures
academies; senior management and policy officials from major aerospace
corporations relevant to space issues; and scientists and engineers All maps, diagrams, charts, and graphs should be referred to as figures and
interested or involved in space policy issues. consecutively numbered and given appropriate captions. Captions for each
figure should be submitted on the same page as the figure to avoid
The journal welcomes submissions of scholarly, independent research confusion. Tables should be kept to a minimum and contain only essential
articles and viewpoint essays. There is no standard length for articles, but data. Each figure and table must be given an Arabic numeral, followed by a
7,500 to 10,000 words, including notes and references, is a useful target for heading, and be referred to in the text. Figures and tables are not to be
research articles, and viewpoint essays should be in the range of 2,500 to embedded in the text. Each table and figure should be clearly labeled. In
5,000 words. The opinions, conclusions, and recommendations expressed the text, make sure and clearly explain all aspects of any figures or tables
or implied within Space and Defense are those of the contributors and do used.
not reflect those of the Eisenhower Center for Space and Defense Studies,
the Air Force Academy, the Air Force, the Department of Defense, or any Style
other agency of the U.S. Government.
Authors are responsible for ensuring that their manuscripts conform to the
Articles submitted to Space and Defense should be original contributions style of Space and Defense. The editors will not undertake retyping of
and not under consideration for any other publication at the same time. If manuscripts before publication. Please follow the Chicago Manual of Style.
another version of the article is under consideration by another publication,
or will be published elsewhere in whatever format, authors should clearly Listed below are some additional style and writing guides:
indicate this at the time of submission. When appropriate, all articles are • Dates in the form: 1 January 2009.
required to have a separate abstract of up to 250 words that describes the • Headings (bold title case and centered).
main arguments and conclusions of the article. Details of the author's • Subheadings (italic title case and centered).
institutional affiliation, full address, and other contact information should • Acronyms/abbreviations should always be spelled out in full on first
be included in a separate file or cover sheet. use in the text.
• The 24-hour clock is used for time, e.g., 0800, 1300, 1800.
Contributors are required to submit all articles electronically by e-mail • Use percent rather than % except in figures and tables.
attachment as a Microsoft word file (.doc or .docx format). Contributors • For numbers, spell out numbers less than 10.
should not submit PDF files. All manuscripts submitted to Space and
• Make use of 21st style where appropriate.
Defense need to be double-spaced with margins of 1inch or 2.5 cm, and all
• Keep capitalization to a minimum.
pages, including those containing only diagrams and tables, should be
numbered consecutively. It is the author’s responsibility to ensure when • Concise paragraphs and sentences are desirable.
copyrighted materials are included in a manuscript that the appropriate • Avoid a paper that is just descriptive; rather engage in analytical rigor
copyright permission is received by the copyright holder. and assessment.
• Avoid policy recommendations in the analysis part of paper; leave
Address manuscripts and all correspondence to: Eligar Sadeh, this, if applicable, for a separate section at the end of the paper.
esadeh@gmail.com (e-mail), 719-393-5294 (telephone). • Define all new terms used in paper.
• Avoid hyphenated words when possible.
Editorial Procedures • Avoid the use of passive voice when possible.
Providing the manuscript meets editorial standards, i.e., relevant to aims Footnotes
and scope, analytical rigor, spelling, grammar, properly referenced, and
suitable length, the academic editors will first undertake a review of the Footnotes need to be numbered consecutively with a raised numeral in the
submission. If required, the author(s) will be invited to make any changes text. Please make use of the Insert-Preference-Footnote function of Word.
and corrections as a result of the review by the academic editors. For Please do not use endnote style or scientific notation. Footnotes should be
viewpoint essays, the process stops here and a publication decision is made. in full bibliographic style with first name, last name format for authors.

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Space and Defense

Scholarly Journal of the United States Air Force Academy

Associate Academic Editors

Lawful Response to Attacks on Space Systems 3

Europe and Security Issues in Space: The Institutional Setting 71

Chinese Intentions in Space: A Historical Perspective for Future Cooperation 101

Eisenhower Center Program Summaries

Space Situational Awareness Workshop 117

Force Doctrine Document 2-2 (2 August Space Capabilities and Threats

based nuclear devices can be detonated, satellites inoperable or unavailable. A variety

sensor, communications antennae, receiver, among various parts of the Chinese

no specific agreement is made with Party A Soviet response options would be

overflights, not satellite-based development activities. It has launched long-

U.S. Congressman Terry Everett argues: built with destructive intent to be

Self-Defense and International In Nicaragua v. U.S. (1986), the ICJ offered

as a use of force the destruction of a systems free from interference; to do so a state

consequences. 103 Kinetic, electromagnetic, and characterized as an “armed attack,”

Anticipatory Self-defense shortfalls exacerbate the time lag and analysis

an analogous circumstance apply to a potential prisoners of war. Its fundamental targeting

accomplish a legitimate military objective. Related to necessity, the central idea of

capability by leasing international commercial Given the prevalent global understanding of

approving that argument would create an communications systems, even in self-

Law on the Use of Force exercise self-defense under international law.

Attacks on Space Systems Does the Liability Convention offer an

not. Third, fault may be difficult to harm, it must undertake “appropriate

systems might be favored in one case as an asymmetric advantages space capabilities

compelling the adversary to observe the LOAC and not for

(post-Cold War). 4 technological revolution linked to the

leadership of a country must be shown in power. 20 According to Colin Gray, “space

years. 34 Increasingly, foreign policy contains governments to influence outcomes. Space

Century without being engaged in space and Europe in the Unfolding

The management of international cooperation European space programs are successful to

programmatic elements in combination representation utilization of space

industrial infrastructure. Europe cannot afford

There are many impediments the European

Frans von der Dunk

The European Space Agency political commitment to develop a coordinated

Optional activities concern in particular the

The dichotomy between mandatory and ESA Involvement

A final example of ESA’s involvement in

The involvement in space and space policy

The result was of all this was Regulation 84

As national sovereignty of member states is shall be granted – or refused – by the member

represents a careful, detailed, and politically development of two European “flagship

Being developed under EU leadership, with 117

arguably be somewhat confined to civil without actual follow-on juridical or

does not seem to be plausible for now. Issues,

To paraphrase the most famous quote in space

China in space, this historical perspective

Space Situational Awareness Workshop

Compiled by Eligar Sadeh

Space Situational Awareness Areas of focus at the 2009 workshop included:

The seminar serves as a useful forum for

Transatlantic Space Cooperation • Joint priorities in protection of critical

The first workshop was held in Brussels,

The second workshop was held in Berlin,

Issues discussed at the 2009 workshop

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